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Chapter I GENERAL PRINCIPLES I. REMEDIAL LAW AND THE RULES OF COURT Concept

of remedial law 1. Remedial law is the traditional term given to the rules

which prescribe the procedure for the protection and enforcement of all claims arising from the rights and duties created by law.

2. Stated in some other way, remedial law provides the “means and methods whereby causes of action may be effectuated, wrongs redressed and relief obtained” (Black’s, 5th Edition, 1162 citing Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556,149 N.W.2d 789, 792).

Substantive law distinguished from remedial law (Bar 2006) Substantive law creates, defines, and regulates rights and

duties concerning life, liberty or property (Primicias v. Ocampo, 93 Phil. 446, 452) the violation of which gives rise to a cause of action (Bustos v. Lucero, 81 Phil. 640, 650).

Remedial law prescribes the methods of enforcing those rights and obligations created by substantive law (Bustos v. Lucero, 81 Phil. 640, 653-654) by providing a procedural system for obtaining redress for the invasion of rights and violations of duties and by laying out rules as to how suits are filed, tried and decided upon by the courts.

The procedural rules under the Rules of Court are not laws The Rules of Court as a whole has reference to the body of rules

governing pleading, practice and procedure promulgated by the Supreme Court pursuant to its rule-making powers

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2 CIVIL PROCEDURE, VOLUME I THE BAR LECTURES SERIES

under the constitution. As they do not originate from the legislature, they cannot be called laws in the strict sense of the word. However, since they are promulgated by authority of law, they have the force and effect of law (Alvero v. De la Rosa, 76 Phil. 428, 434) if not in conflict with positive law. The Rules are subordinate to statute, and in case of conflict, the statute will prevail (Shioji v. Harvey, 43 Phil. 333, 342; Inehausti v. De Leon, 24 Phil. 224, 226; Altavas v. Court of Appeals, 106 Phil. 940, 943). Prospective effect of the Rules of Court (Bar 2011)

The rules embodied in the Rules of Court are not penal laws and are not to be given retroactive effect (Bermejo v. Barrios, 31 SCRA 764, 776) and are to govern cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court, their application would not be feasible or would work injustice, in which event the former procedure shall apply (Rule 144, Rules of Court). Applicability to pending actions; retroactivity (Bar 2011)

1. Rules of procedure however, may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. As a general rule, the retroactive application of procedural laws cannot be considered violative of any personal rights because no vested right may attach to nor arise therefrom (In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong, 497 SCRA 626, 636-637). The rules are retroactive only in this sense (PCI Leasing and Finance, Inc. v. Go Ko, 454 SCRA 586, 592).

Procedural laws may be given retroactive effect to actions pending and to those which are yet undetermined at the time of their passage because there are no vested rights in the rules of procedure (Go v. Sunbanon, 642 SCRA 367, 383, February 9,2011).

Rule 144 expressly makes the rules under the Rules of Court applicable also to “further proceedings in cases then pending” when the Rules of Court took effect.

CHAPTER I GENERAL PRINCIPLES

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2. For instance, the Court also applied to pending actions, a rule promulgated through a case (Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005) which standardized the period for appeal by allowing a ‘fresh period’ of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Declared the Court: " . . . In the light of this decision, a party litigant may

now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent” (First Aqua Traders, Inc. v. Bank of the Philippine Islands, 514 SCRA 223, 226-227; See also Go v. Sunbanon, 642 SCRA 367, February 9, 2011).

When procedural rules do not apply to pending actions While a procedural rule may be made applicable to actions

pending and undetermined at the time of their passage and is retroactive in that sense, the rule does not apply:

(a) where the statute itself or by necessary implication provides that pending actions are excepted from its operation;

(b) if applying the rule to pending proceedings would impair vested rights;

(c) when to do so would not be feasible or would work injustice; or

(d) if doing so would involve intricate problems of due process or impair the independence of the courts (Tan v. Court of Appeals, 373 SCRA 524, 537).

Applicable actions or proceedings

The Rules of Court shall govern the procedure to be observed in civil actions, criminal actions, and special proceed


ings (Sec. 3, Rule 1, Rules of Court) and shall also apply in all courts, except as otherwise provided by the Supreme Court (Sec. 2, Rule 1, Rules of Court).

Inapplicable actions or proceedings 1. Sec. 4, Rule 1 of the Rules of Court clearly provides that

the Rules shall not apply to the following cases:

(a) election cases; (b) land registration cases;

(c) cadastral cases; (d) naturalization cases; and

(e) insolvency proceedings (Sec. 4, Rule 1, Rules of Court).

2. The Rules may, however, apply to the above cases by (a) analogy or (b) in a suppletory character and whenever practicable and convenient (Sec. 4, Rule 1, Rules of Court).

3. It is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies such as the Board of Medicine (Atienza v. Board of Medicine, 642 SCRA 523, 529, February 9, 2011).

4. Jurisprudence discloses that the rules in the Rules of Court do not also apply to non-judicial proceedings.

(a) For instance, one case declared that although as a rule, affidavits are hearsay, the argument that the affidavits attached to the case are hearsay because the affiants were not presented in court for cross-examination is not persuasive. The rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only. Rules that prevail in judicial proceedings are not controlling before the labor arbiter and the NLRC (Bantolino v. Coca-Cola Bottlers, Phil., Inc., 403 SCRA 699, 703).


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(b) Technicalities have no room in labor cases where the Rules of Court are applied only in a suppletory manner and only to effectuate the objectives of the Labor Code and not to defeat them (Panuncillo v. CAP, Phils., Inc., 515 SCRA 323, 341).

Labor disputes are not governed by the strict and technical rules of evidence and procedure observed in the regular courts of law. Technical rules of procedure are not applicable in labor cases, but may apply only by analogy or in a suppletory character, for instance, when there is a need to attain substantial justice and an expeditious, practical and convenient solution to a labor problem (Sime Darby Employees Association v. NLRC, 510 SCRA 204, 222). That is why a reliance on the technical rules of evidence in labor cases is misplaced. To apply the concept of judicial admissions for instance, in such cases is to exact compliance with technicalities contrary to the demands of substantial justice (Mayon Hotel and Restaurant v. Adana, 458 SCRA 609, 629).

(c) In labor cases, rules should not be applied in a very rigid and technical sense. Technicialities should not be made to stand in the way of equitably and completely resolving the rights and obligations of the parties. Respecting the lack of verification in labor cases, the Court

instructs in Millenium Erectors Corporation v. Magallanes, 634 SCRA 708, 713-714, November 15, 2010:

“As to the defective verification in the appeal mem-orandum before the NLRC, the same liberality applies.

After all, the requirement regarding verification of a pleading is formal, not jurisdictional. Such requirement is simply a condition affecting the form of pleading, the non-compliance of which does not necessarily render the pleading fatally defective. Verification is simply intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagi-nation or a matter of speculation, and that the pleading is filed in good faith. The court or tribunal may order the


correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served.” (Citation omitted)

As for the requirement of proof of service, it may also be dispensed with since in appeals in labor cases, non-service of copy of the appeal or appeal memorandum to the adverse party is not a jurisdictional defect which calls for the dismissal of the appeal (Millenium Erectors Corporation v. Magallanes, 634 SCRA 708, 713-714, November 15, 2010).

5. In a much earlier case, the petitioner contended that under Sec. 34, Rule 132 of the Rules of Court, only evidence which has been formally offered shall be considered by the court. Under this rule, a formal offer of evidence is made in the trial court and not for the first time in the appellate court. The contention however, of the petitioner that the Court of Appeals erred in deciding against his petition on the basis of documentary evidence presented only for the first time on appeal and which do not form part of the records of the trial court, was ruled by the Supreme Court as bereft of merit. The rule on formal offer of evidence is not applicable to a case involving a petition for naturalization (Ong Chia v. Republic, 328 SCRA 749, 756).

6. Administrative bodies are not bound by the technical niceties of the rules obtaining in a court of law. Hence, administrative due process cannot be fully equated with due process in strict judicial terms (Samalio v. Court of Appeals, 454 SCRA 462, 471).

7. Technical rules of procedure imposed in judicial proceedings are unavailing in cases before administrative bodies. Administrative bodies are not bound by the technical niceties of law and procedure and the rules obtaining in the courts of law. Rules of procedure are not to be applied in a very rigid and technical manner, as they are used only to help secure and not to override substantial justice (Department of Agrarian Reform v. Uy, 515 SCRA 376, 399).


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8. Another case, Sasan, Sr. v. NLRC, 569 SCRA 670, 686-687, further illustrates the rule on the non-applicability of the Rules of Court to non-judicial proceedings.

In this case, Respondent, in support of its material allegations, submitted before the NLRC several documents which it did not present before the Labor Arbiter. Largely on the basis of those documents presented for the first time on appeal, the NLRC promulgated its decision modifying the ruling of the Labor Arbiter.

Distressed by the decision of the NLRC, Petitioners sought recourse with the Court of Appeals by filing a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure. In its Decision, the Court of Appeals affirmed the findings of the NLRC.

In the Supreme Court, the Petitioners raised as one of the issues the acceptance and consideration by the NLRC of the evidence presented for the first time on appeal. The Supreme Court ruled that the issue is not a novel procedural issue, and that Philippine jurisprudence is accordingly already replete with cases allowing the NLRC to admit evidence, not presented before the Labor Arbiter, and submitted to the NLRC for the first time on appeal.

Explained the Court:

“Technical rules of evidence are not binding in labor cases. Labor officials should use every reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. The submission of additional evidence before the NLRC is not prohibited by its New Rules of Procedure. After all, rules of evidence prevailing in courts of law or equity are not controlling in labor cases. The NLRC and labor arbiters are directed to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law and procedure all in the interest of substantial justice. In keeping with this directive, it has been held that the NLRC may consider evidence, such as


documents and affidavits, submitted by the parties for the first time on appeal. The submission of additional evi-dence on appeal does not prejudice the other party for the latter could submit counter-evidence. ”

Citing a previous case, Clarion Printing House, Inc. v. National Labor Relations Commission, 461 SCRA 289, the Court reiterated what had in the past already been emphasized:

“The NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not binding in labor cases.

The settled rule is that the NLRC is not precluded from receiving evidence on appeal as technical rules of evidence are not binding in labor cases. In fact, labor of-ficials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. Thus, in Lawin Security Services v. NLRC, and Bristol Laboratories Employees’ Association-DFA v. NLRC, [th]e [Court] held that even if the evidence was not submitted to the labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal. Certainly, the first course of action would be more consistent with equity and the basic notions of fairness” (Sasan, supra at 686).

9. In the Sasan case, Petitioners likewise protested against the documentary evidence submitted by the adverse party because they were mere photocopies. Evidently, petitioners invoked the best evidence rule, espoused in Sec. 3, Rulel30 of the Rules of Court which provides that:

“Section 3. — Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself x x x.”


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The Court brushed aside the objection holding that even assuming that petitioners were given mere photocopies, again, it was stressed that proceedings before the NLRC are not covered by the technical rules of evidence and procedure as observed in the regular courts. Technical rules of evidence do not apply if the decision to grant the petition proceeds from an examination of its sufficiency as well as a careful look into the arguments contained in position papers and other documents (Sasan, Sr. v. NLRC, supra).

Scope of civil procedure

Civil procedure includes:

(a) ordinary civil actions (Rules 1-56);

(b) provisional remedies (Rules 57-61); and

(c) special civil actions (Rules 62-71).

II. RULE-MAKING POWER OF THE SUPREME COURT

Constitutional authority to promulgate rules 1. Sec. 5(5), Art. VIII, Constitution of the Philippines

expressly confers upon the Supreme Court the power to:

“x x x Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, prac-tice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

2. The rule-making power of the Court specifically includes the constitutional power to promulgate rules concern


ing pleading, practice, and procedure (Sec. 5[5], Art. VIII, Constitution of the Philippines).

3. Describing its rule-making power, the Supreme Court declares:

“x x x The rule-making power of th[e] Court has expanded. Th[e] Court for the first time, was given the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most important, the 1987 Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by th[e] Court with Congress, more so with the executive x x x” (Echegaray v. Secretary of Justice, 301 SCRA 96, 112).

4. In another case, the Court, in describing its rule- making power held:

“It has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases” (Neypes v. Court of Appeals, 469 SCRA 633, 643-644; Italics sup-plied).

Power to amend the rules 1. The Supreme Court has the power to amend, repeal or

even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases (Neypes v. Court of Appeals, 469 SCRA 633, 643-644; Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234,245).

2. The constitutional power of the Supreme Court to promulgate rules of practice and procedure and to amend or repeal the same necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court (Pinga v. Heirs of Santiago, 494 SCRA 393, 398).


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Power to suspend the Rules; power to reverse itself 1. The courts have the power to relax or suspend technical or

procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts (Commissioner of Internal Revenue v. Mirant Pagbilao Corporation, 504 SCRA 484, 496).

The Court, in the exercise of its rule-making power, can suspend its rules with respect to a particular case (pro hac vice) (De la Cruz v. Court of Appeals, 510 SCRA 103,124).

2. The Court views rules of procedure as mere tools designed to facilitate the attainment of justice. Hence, their strict application which would result in technicalities and tend to frustrate rather than promote substantial justice must, accordingly, “always be eschewed.” From the point of view of the Court, “[T]he power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which the Court itself had already declared to be final” (Apo Fruits Corporation v. Land Bank of the Philippines, 632 SCRA 727, 762-763, G.R. No. 164195, October 12, 2010, citing Ginete v. Court of Appeals, 292 SCRA 38; Emphasis supplied).

3. The Rules itself expressly states in Sec. 2 of Rule 1 that the rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding. Courts, therefore, not only have the power but the duty to construe and apply technical rules liberally in favor of substantive law and substantial justice. Furthermore, the Court, unlike courts below, has the power not only to liberally construe the rules, but also to suspend them, in favor of substantive law or substantial rights. Such power inherently belongs to the Court, which is expressly vested with rule- making power by no less than the Constitution (Redeha v. Court of Appeals, 514 SCRA 389, 398-399 citing Sec. 5[5], Art. VII, Constitution of the Philippines).


4. There are reasons which would warrant the suspension of the Rules:

(a) the existence of special or compelling circumstances; (b) the merits of the case; (c) a cause not entirely attributable to the fault or negligence

of the party favored by the suspension of rules; (d) a lack of any showing that the review sought is merely

frivolous and dilatory; and (e) the other party will not be unjustly prejudiced thereby

(Sarmiento v. Zaratan, 514 SCRA 246, 260 citing Sanchez v. Court of Appeals, 404 SCRA 540).

5. The inherent power of a court to amend and control its processes and orders includes the right to reverse itself if only to make its findings and conclusions conformable to law and justice. Every court has the power and the corresponding duty to review, amend, or reverse its findings and conclusions whenever its attention is seasonably called to any error or defect that it may have committed (Herce v. Municipality of Cabuyao, 512 SCRA 332, 336).

6. The suspension by the Supreme Court of procedural rules in a particular case is not novel. For instance, under Sec. 2 of Rule 52 in relation to Sec. 2 of Rule 56, a second motion for reconsideration in the Supreme Court is a prohibited motion, thus:

“x x x No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained” (Sec. 2, Rule 52, Rules of Court).

Nevertheless, in People v. Romualdez, the Court entertained a second motion for reconsideration based on prescription of the offense, a ground previously raised in the first motion for reconsideration (People v. Romualdez, 587 SCRA 123, 132, 137). A second motion for reconsideration was also granted in United Planters Sugar Milling Co., Inc. v. Court of Appeals, 583 SCRA 63, 96.


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Earlier, in Astorga v. People, 437 SCRA 152, 155, the Court also found a second motion for reconsideration “well- taken” declaring that it is within the sound discretion of the Court to admit the same “whenever substantive justice may be better served thereby.”

In Manotok IV v. Heirs of Barque, 574 SCRA 468, 509, the Court set aside the Decision and Resolution of the Court’s First Division and the Entry of Judgment recalled and remanded the cases involved to the Court of Appeals for further proceedings.

Limitations on the rule-making power of the Supreme Court The following limitations are imposed by the Constitution on

the rule-making power of the Supreme Court: (a) The rules shall provide a simplified and inexpensive

procedure for the speedy disposition of cases; (b) The rules shall be uniform for courts of the same grade;

and (c) The rules shall not diminish, increase, or modify

substantive rights (Sec. 5[5], Art. VIII, Constitution of the Philippines).

The rule on liberal construction; purpose (Bar 1998) 1. The rule is expressed in Sec. 6 of Rule 1 of the Rules of

Court, to wit:

“SEC. 6. Construction — These Rules shall be liber-ally construed in order to promote their objective of se-curing a just, speedy and inexpensive disposition of every action and proceeding.”

2. The rule of liberal construction seeks to achieve a disposition of every action and proceeding in a manner that is (a) just, (b) speedy, and (c) inexpensive (See also FA.T. Key Computer Systems v. Online Networks International, Inc., 641 SCRA 390, 408, February 2, 2011).


3. Procedural rules were conceived to aid the attainment of justice. If a stringent application of the rules would hinder rather than serve the demands of substantial justice, the former must yield to the latter (City ofDumaguete v. Philippine Ports Authority, G.R. No. 168973, August 24, 2011).

4. Lapses in the literal observation of a procedural rule will be overlooked when they do not involve public policy, when they arose from an honest mistake or unforeseen accident, and when they have not prejudiced the adverse party or deprived the court of its authority (Alcantara v. Philippine Commercial and International Bank, 634 SCRA 48, 59, October 20, 2010).

Meaning of the rule on liberal construction 1. The rule means that the rigid application of the Rules

may be relaxed so that the ends of justice may be better served (Cruz v. Court of Appeals, 476 SCRA 581, 586) and that technicality or procedural imperfection should not serve as basis of decisions (Polanco v. Cruz, 579 SCRA 489, 498).

It also means that the Rules must not be applied rigidly so as not to override substantial justice (De la Cruz v. Court of Appeals, 510 SCRA 103, 124, citing Barnes v. Padilla, 461 SCRA 533) because rules of procedure must be used to facilitate, not frustrate substantial justice (Canton v. City of Cebu, 515 SCRA 441, 448).

2. As far back as Alonso v. Villamor, 16 Phil. 315, 321- 322, the Court had declared that:

“A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imper-fections of form and technicalities of procedure asks that justice be done on the merits. Lawsuits, unlike duels, are not to be won by a rapier’s thrust. Technicality, when it


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deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant con-sideration from courts. There should be no vested rights on technicalities, x x x”

3. While it is desirable that the Rules of Court be faithfully observed, courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. If the rules are intended to ensure the proper and orderly conduct of litigation, it is because of the higher objective they seek which is the attainment of justice and the protection of substantive rights of the parties. Thus, the relaxation of procedural rules, or saving a particular case from the operation of technicalities when substantial justice requires it, x x x should no longer be subject to cavil (Vette Industrial Sales Co., Inc. v. Sui Soan S. Cheng, 509 SCRA 532, 543 citing Nazareno v. Court of Appeals, 428 Phil. 32).

Extent and scope of the rule on liberal construction 1. A liberal interpretation and application of the rules of

procedure can be resorted to only in proper cases and under justifiable causes and circumstances (Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, 504 SCRA 484, 496 citing Fortich v. Corona, 298 SCRA 678).

2. The Court however, cautions that it does not mean “that procedural rules are to be ignored or disdained at will to suit the convenience of a party. Procedural law has its own rationale in the orderly administration of justice, namely to ensure the effective enforcement of substantive rights by providing for a system that obviates arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes” (Abrenica v. Law Firm of Abrenica, Tungol and Tibayan, 502 SCRA 614, 622 citing Sebastian v. Morales, 397 SCRA 549).

3. A relaxation in the application of the rules “was never intended to forge a bastion for erring litigants to violate the rules with impunity x x x” (Republic of the Phil. v. Kenrick Development Corporation 498 SCRA 220, 231 citing Garbo v. Court of Appeals, 258 SCRA 159).


4. The phrase, “in the interest of justice” is not “a magic wand that would automatically compel the suspension of procedural rules” (Ramos v. Alvendia, 568 SCRA 239, 249). It has been emphasized that “invocation of substantial justice is not a magical incantation that will automatically compel” the Court to suspend procedural rules. Such rules “are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party’s substantive rights” (Cu-Unjieng v. Court of Appeals, 479 SCRA 594, 604).

General rule on liberal construction; exceptions 1. Compliance with the procedural rules is the general rule,

and abandonment thereof should only be done in the most exceptional circumstances (Pilapil v. Heirs of Briones, 514 SCRA 197,211) and save for the most persuasive reasons, strict compliance with the rules is enjoined to facilitate the orderly administration of justice (Cruz v. Court of Appeals, 476 SCRA 581, 586).

“x x x To be sure, strict compliance with the rules of procedure is essential to the administration of justice. Nonetheless, technical rules of procedure are mere tools designed to facilitate the attainment of justice. Their strict and rigid application should be relaxed when they hinder rather than promote substantial justice. Otherwise stated, strict application of the rules of procedure should be shunned when they hinder rather than promote substantial justice” (Asiatrust Development Bank v. First Aikka Development, Inc., G.R. No. 179558, June 11,2011).

2. A reading of jurisprudence will reveal that the rule on liberal construction cannot be successfully invoked where a party seeking for its application cannot show a justification for his deviation from the Rules. That the Rules cannot simply be ignored at will is a consistent refrain from jurisprudence.

The absence of a persuasive reason for not complying with the Rules is exemplified in a more recent case.

In Barangay Dasmarinas v. Creative Play Comer School, G.R. No. 169942, January 24, 2011, the petitioner, was grant


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ed an extension of fifteen (15) days to file its petition for review with the Court of Appeals because of the heavy workload of its counsel. Later, a second motion for extension of time to file the petition for an additional period of five (5) days was filed. The second motion was predicated upon the same reason as in the first motion for extension of time. Then another motion was filed seeking another extension of five (5) days and with the additional reason that a death in the family of the counsel occurred. No details however, according to the Court of Appeals were given for the court to determine whether such reason is indeed compelling.

Under Sec. 4 of Rule 43, the court’s discretion to grant a second motion for extension is limited only to the most compelling reason. The CA likewise observed that the counsel of the petitioner was a law office with associates and not just the lawyer whose relative allegedly passed away. The other lawyers in the office could have filed the petition. The Court of Appeals dismissed the petition for having been filed beyond the period allowed by the Revised Rules of Civil Procedure. Besides, the records show that the petition for review was actually filed five (5) days after the extended time requested in the motion. When the petitioner’s motion for reconsideration was denied by the Court of Appeals, the petitioner sought relief in the Supreme Court where the petitioner invoked the policy of liberal construction. However, the Supreme Court sustained the findings and the orders of the Court of Appeals.

The ruling of the Court was summarized in its opening statement, thus:

“Utter disregard of [the rules of procedure] cannot justly be rationalized by harking on policy of liberal con-struction.”

3. It is true that oftentimes the Court applied the rules with flexibility in order that the merits of a case will be fully adjudicated upon, notwithstanding its technical imperfections. But what impels the Court to do so is neither a party’s empty invocations of liberality nor its mechanical correction of the imperfections. Rather, only a clear showing of prima


facie merit of the petition will persuade the Court to take the extraordinary effort of setting aside its rules to give way to the imperfect petition. After all, the rationale for liberality is to bring to light the merits of the petition, unobstructed by mere deficiencies in its form, such that if the petition has not an iota of merit in it, then there is nothing for the Court to bring to light at all (Munoz v. People, 548 SCRA 473, 481).

4. Concomitant to a procedure adopting a liberal application of the rules should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules (Abrenica v. Abrenica, Tungol and Tibayan, 502 SCRA 614, 622).

5. In a labor case, the Court ruled that even if the appeal was filed one day late, the same should have been entertained by the NLRC. Indeed, declared the Court, the appeal must be perfected within the statutory or reglementary period. This is not only mandatory, but also jurisdictional. Failure to perfect the appeal on time renders the assailed decision final and executory and deprives the appellate court or body of the legal authority to alter the final judgment, much less entertain the appeal. However, it has, time and again, ruled that, in exceptional cases, a belated appeal may be given due course if greater injustice will be visited upon the party should the appeal be denied. The Court has allowed the extraordinary measure even at the expense of sacrificing order and efficiency if only to serve the greater principles of substantial justice and equity. Technicality should not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. The Court has consistently held that technical rules are not binding in labor cases and are not to be applied strictly if the result would be detrimental to the working man (GSIS v. NLRC, 635 SCRA 251, 257-258, November 17, 2010).

Liberal construction as applied to civil cases; illustrations 1. The application of the liberal construction rule extends to

the entire spectrum of the Rules, even in the filing of motions.


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In respect to the filing of motions, “[T]he Court has consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper, which the clerk of court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective. However, there are exceptions to the strict application of this rule. These exceptions are as follows:

“x x x Liberal construction of th[e] rule has been al-lowed by th[e] Court in cases (1) where a rigid application will result in a manifest failure or miscarriage of justice; x x x (2) where the interest of substantial justice will be served; (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate [to] the degree of his thoughtlessness in not complying with the procedure prescribed” (Vette In-dustrial Sales Co., Inc. v. Sui Soan S. Cheng, 509 SCRA 532, 545 citing Vlason Enterprises Corporation v. Court of Appeals, 310 SCRA 26). 2. The early case of Lorbes v. Court of Appeals, 351 SCRA

716, 724-725, accurately reflects the liberal policy of the Court in matters of default.

In this case summons and a copy of the complaint were served upon the private respondents. When the private respondents filed their answer beyond the reglementary period, the petitioners filed a motion to declare the private respondents in default, which the trial court granted. Thereafter, the petitioners presented their evidence ex parte before the trial court. The private respondents filed a motion to lift the order of default and to strike out the evidence presented ex parte. The court denied the motion. Later, a judgment by default was later rendered against the private respondents.

If the Court were to follow the tenor of the rule strictly, the trial court, under the facts, would not technically be faulted


for the issuance of its orders. Under Sec. 3 of Rule 9, “[I]f the defending party fails to answer within the time allowed therefor, the court, shall, upon motion of the claiming party with notice to the defending party, and proof, of such failure, declare the defending party in default.” The phraseology of the provision by the use of the term ‘shall,’ seems to give the court no choice but to declare the defending party in default. The rules on default however, have not been spared by the rule on liberal construction, with the Court declaring, thus:

“Well-settled is the rule that courts should be liberal in setting aside orders of default for judgments of default are frowned upon, unless in cases where it clearly appears that the reopening of the case is intended for delay. The issuance of orders of default should be the exception rather than the rule, to be allowed only in clear cases of obstinate refusal by the defendant to comply with the or-ders of the trial court.

Under the factual milieu of th[e] case, the RTC was indeed remiss in denying private respondents’ motion to lift the order of default and to strike out the evidence pre-sented by petitioners ex parte, especially considering that an answer was filed, though out of time. [Th]e [Court] thus sustained] the holding of the Court of Appeals that the default order of the RTC was immoderate and in vio-lation of private respondents’ due process rights.”

3. A case before Lorbes had earlier expressed the judicial attitude on defaults. In setting aside the order of default and the resulting judgment by default, the Court had the occasion to emphasize:

“Suits should as much as possible be decided on the merits and not on technicalities. In this regard, [th]e [Court] [has] often admonished courts to be liberal in setting aside orders of default as default judgments are frowned upon and not looked upon with favor for they may amount to a positive and considerable injustice to the defendant and the possibility of such serious consequences necessitates a careful examination of the grounds upon which the defendant asks that it be set aside. Since rules


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of procedure are mere tools designed to facilitate the at-tainment of justice, it is well recognized that th[e] Court is empowered to suspend its operation, or except a par-ticular case from its operation, when the rigid application thereof tends to frustrate rather than promote the ends of justice. [Th]e [Court] [is] not unmindful of the fact that during the pendency of the instant petition, the trial court has rendered judgment against petitioners. However, be-ing the court of last resort, [th]e [Court] deem[s] it in the best interest that liberality and relaxation of the Rules be extended to petitioners by setting aside the order of default issued by the trial court and the consequent de-fault judgment; otherwise, great injustice would result if petitioners are not afforded an opportunity to prove their claims (Diaz v. Diaz, 331 SCRA 302, 322-323).

4. There is a well-recognized procedural rule that certain rules are to “remain inviolable like those setting the periods for perfecting an appeal or filing a petition for review. For it is doctrinally entrenched that the right to appeal is a statutory right and one who seeks to avail of that right must comply with the pertinent statute or rules. The perfection of an appeal in the manner and within the period permitted by law is not only mandatory but also jurisdictional. The failure to seasonably perfect the appeal to a higher court renders the judgment of the lower court final and executory. Just as a losing party has the right to file an appeal within the prescribed period, the winning party also has thereafter the correlative right to enjoy the finality of the decision in the case” (Dayrit v. Philippine Bank of Communications, 386 SCRA 117,124-126, citing Videogram Regulatory Board v. Court of Appeals, 265 SCRA 50).

The limitation on the period of appeal is not without reason. They must be strictly followed as they are considered indispensable to forestall or avoid unreasonable delays in the administration of justice, to ensure an orderly discharge of judicial business, and to put an end to controversies. Though as a general rule, rules of procedures are liberally construed, the provisions with respect to the rules on the manner and


periods for perfecting appeals are strictly applied and are only relaxed in very exceptional circumstances on equitable considerations (Heirs of Gaudiano v. Benemerito, 516 SCRA 416, 420- 421).

Despite the above rule, the Supreme Court had, on numerous occasions allowed the filing of an appeal where a strict adherence to the rule would have disallowed the same.

5. In Samala v. Court of Appeals, 363 SCRA 535, 540- 541, the petitioners filed with the trial court a petition for relief from the order denying their appeal. Petitioners sought to explain that the reason for their failure to file their notice on appeal on time was because the person upon whom the notice was entrusted suffered from diarrhea for several days which prevented him from leaving the house. He however, filed the notice of appeal on a Monday which was one (1) day after the lapse of the period for filing the same and he did so thinking that the period had not lapsed. The trial court denied the petition. The petitioner was likewise unsuccessful in the Court of Appeals.

One question before the Supreme Court was whether the failure of petitioners to file the notice of appeal on time (one day late) would fall under excusable negligence. In deciding on the issue in the affirmative, it was ruled:

“x x x [Th]e [Court] said that the general aim of pro-cedural law is to facilitate the application of justice to the rival claims of contending parties, bearing in mind that procedural rules are created not to hinder or delay but to facilitate and promote the administration of justice. In rendering decisions, courts must not be too dogmatic. A complete view must be taken in order to render a just and equitable judgment. It is far better to dispose of a case on the merits, which is a primordial end, than on technicality that may result in injustice.

The rules of procedure are mere tools designed to facilitate the attainment of justice. Their strict and rigid application especially on technical matters, which tends to frustrate rather than promote substantial justice, must


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be avoided. Even the Revised Rules of Court envision this liberality. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from the courts x x x . ”

6. In Heirs of Rodolfo Crisostomo v. Rudex International Development Corporation, G.R. No. 176129, August 24, 2011, the petitioners filed their petition one day late. It appeared that their counsel assigned her secretary to arrange and attach the annexes but without counsel’s knowledge, the secretary did what was asked of her in a vacant room outside their office. The secretary who was a single mother failed to report for work the following day to take her kids to the doctor. The kids were earlier abandoned by their nanny the night before. It was only late in the afternoon that the secretary remembered that she forgot to leave instructions about the petition in their office.

The Court explained that where no element of intent to delay the administration of justice could be attributed to petitioners, a one-day delay does not justify their petition’s dismissal.

7. In Aguam v. Court of Appeals, 332 SCRA 784, 789, the Court declared that the Court of Appeals may dismiss an appeal for failure to file the appellant’s brief on time. It was however, stressed that this authority is not mandatory but only directory and the court has the discretion to dismiss or not to dismiss the appeal provided it be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case. In this case, after considering the circumstances of the delay, the Court ruled that the better course of action for the Court of Appeals was to admit appellant’s brief even if the delay was for nine (9) days. The Court further explained that lapses in the literal observance of a rule of procedure, will be overlooked when they arose from an honest mistake, when they have not prejudiced the adverse party and if strict compliance with the rules would mean sacrificing justice to technicality.


8. In many instances in the past, the Court allowed appeals filed out of time where the delay was not due to fault or negligence of the appellant and the appeals were impressed with merit.

Siguenza v. Court of Appeals for example, remarkably highlights the emphasis accorded by the Court on the higher interests of justice. In this case, although the appellate court correctly found that the record on appeal was filed thirteen (13) days late, the Supreme Court allowed the appeal holding that the petitioners’ delay, in filing their record on appeal, should not be strictly construed as to deprive them of the right to appeal especially since on its face the appeal appears to be impressed with merit. In substance, the Court held that the case should be decided on the merits (Siguenza v. Court of Appeals, 137 SCRA 570, 576).

9. The rule to be remembered has been succinctly stated in one recent case. The case of Go v. Sunbanon emphasized:

“x x x It must be emphasized however, that provi-sions with respect to the rules on the manner and periods for perfecting appeals, are strictly applied and are only relaxed in very exceptional circumstances on equitable considerations (Gov. Sunbanon, 642 SCRA 367,381, Feb-ruary 9, 2011).

10. In Multi-Trans Agency Phils., Inc. v. Oriental Assurance Corporation, 590 SCRA 675, 689-691, the Court ordered the case remanded to the trial court for a new trial, “to admit the Answer of the petitioner and to receive the latter’s evidence, and rebuttal and sur-rebuttal evidence if warranted, and to dispose of the case with reasonable dispatch” where the reckless or gross negligence of counsel deprived the client of due process of law. Here, the Court defined gross negligence “as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It examines a thoughtless disregard of consequences without exerting any effort to avoid them.”

11. In signing the certificate against forum shopping, while the general rule is that the certificate of non-forum


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shopping must be signed by all the plaintiffs in a case and the signature of only one of them is insufficient, the Court has stressed that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. Strict compliance with the provision regarding the certificate of non-forum shopping underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. It does not, however, prohibit substantial compliance therewith under justifiable circumstances, considering especially that although it is obligatory, it is not jurisdictional. The Court has consistently held that when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the rules (Pacquing v. Coca-Cola Philippines, Inc., 543 SCRA 344, 353-354).

In another case, the Court has deemed it proper to relax the rule by considering the signature of only one among numerous petitioners as substantial compliance in cases where all petitioners share a common interest and invoke a common cause of action such as illegal dismissal (MAKAMANGGAGAWA v. Associated Anglo-American Corporation, 546 SCRA 124,127).

12. In the matter of payment of docket fees, a liberal construction has also been adopted by the Court.

The case of the The Heirs of Reinoso, Sr. v. Court of Appeals, G.R. No. 116121, July 18, 2011, aptly illustrates the application of the rule.

This case arose out of a collision of a passenger jeepney and a truck resulting in the death of a passenger. The trial court rendered a decision in favor of the heirs of the passenger who died. On appeal, the Court of Appeals motu proprio set aside and reversed the decision of the lower court and dismissed the complaint on the ground of non-payment of docket fees even if


the matter of non-payment of docket fees was never an issue in the trial court. In addition, the Court of Appeals ruled that since prescription had set in, petitioners could no longer pay the required docket fees.

While the case ruled that the petitioners were liable for the difference between the actual fees paid and the correct payable docket fees to be assessed by the clerk of court which shall constitute a lien on the judgment, the Court emphatically also held:

“x x x there is a need to suspend the strict applica-tion of the rules so that the petitioners would be able to fully and finally prosecute their claim on the merits at the appellate level rather than fail to secure justice on a technicality, for, indeed, the general objective of procedure is to facilitate the application of justice to the rival claims of contending parties, bearing always in mind that procedure is not to hinder but to promote the administra-tion of justice.”

13. The rule on the requirement for a verification has also been liberally construed. The case of Prince Transport, Inc., v. Garcia, 639 SCRA 312,327, January 12,2011, teaches that “x x x In any case, the settled rule is that a pleading which is required by the Rules of Court to be verified, may be given due course even without a verification if the circumstances warrant the suspension of the rules in the interest of justice. Indeed, the absence of a verification is not jurisdictional, but only a formal defect, which does not of itself justify a court in refusing to allow and act on a case.”

14. It has been held that social legislation is liberally construed in favor of the beneficiaries. Retirement laws in particular, are liberally construed in favor of the retiree because their objective is to provide for the retiree’s sustenance and, hopefully, even comfort, when he no longer has the capability to earn a livelihood (GSIS v. De Leon, 635 SCRA 321, 330, November 17, 2010).


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Liberal construction rule applied to criminal cases 1. The liberal construction rule is not exclusive to civil cases.

It has been applied to criminal cases as well. One case that should be read in its entirety to fully appreciate

the Court’s unwavering and consistent policy to set aside technicalities in the interest of substantial justice, is the case oiValeroso v. Court of Appeals, 598 SCRA 41. The case likewise vividly illustrates the strong aversion of the Court towards violations of constitutional rights and in the process unhesitatingly excepted a particular case from the operation of the rules.

The petitioner in this case was charged with illegal possession of firearms in violation of PD 1866. The trial court convicted him as charged and the firearm was ordered confiscated in favor of the government. The conviction was later affirmed by the Court of Appeals. On petition for review, the Supreme Court affirmed the CA decision and the motion for reconsideration subsequently filed was denied with finality.

Thereafter, through a Letter-Appeal, focusing on the alleged violation of his constitutional rights, the petitioner implored the Court “to once more take a contemplative reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure.” In a manifestation, the Office of the Solicitor General (OSG) changed its previous position and recommended the acquittal of the petitioner accordingly, after taking a second look at the evidence, it found the testimonies of the petitioner credible. The OSG also agreed with the petitioner that the firearm was obtained by the police under circumstances violative of the petitioner’s constitutional rights against illegal search and seizure.

The Court conceded that the Letter-Appeal was actually in the nature of a second motion for reconsideration and a second motion for reconsideration is, as a general rule, a prohibited motion. The Court however, reconsidered so that substantive justice may be better served.


In so doing, the Court clearly stated: “x x x [Th]e [Court] would like to stress that rules of

procedure are merely tools designed to facilitate the attainment of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justicer it would always be within fthe Court’sl power to suspend the rules or except a particular case from its operation” (Valeroso v. Court of Appeals, 598 SCRA 41, 52; Citations omitted; underscoring supplied).

2. In Cariaga v. People, G.R. No. 180010, July 30,2010, the Court of Appeals dismissed petitioner’s appeal for lack of jurisdiction, holding that it is the Sandiganbayan which has exclusive appellate jurisdiction over the case. The petitioner who admitted the procedural error committed by her former counsel sought a relaxation of the rules to afford her an opportunity to fully ventilate her appeal on the merits and prayed that the Court endorse and transmit the records of the cases to the Sandiganbayan in the interest of substantial justice.

The court was quick to recognize that the petitioner was deprived of due process of law by the negligence of her counsel. While conceding that the negligence of counsel generally binds the client, when the application of the rule will result in outright deprivation of the client’s liberty or property, the Court held that the rule will not be strictly applied especially when the appeal involves criminal cases.

3. In a case with facts similar to that of Cariaga, the Court of Appeals dismissed an appeal which should have been brought before the Sandiganbayan invoking Sec. 2 of Rule 50 of the 1997 Revised Rules of Court provides, among others, that “an appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright.”

CHAPTER I 29 GENERAL PRINCIPLES

Because of the peculiar circumstances of the case, the Court reconsidered by suspending the Rules to give the petitioner a chance to bring her case to the Sandiganbayan. In the process, the Court made exception to the general rule that the mistakes and negligence of counsel bind the client. “Doubtless, the filing of the appeal before the Court of Appeals by the petitioner’s former counsel was not simple negligence. It constituted gross negligence.”

In particular, the court declared: “It bears stressing at this point, that the rule which

states that the mistakes of counsel bind the client may not be strictly followed where observance of it would result in outright deprivation of the client’s liberty or property, or where the interests of justice so require. In rendering justice, procedural infirmities take a backseat against substantive rights of litigants. Corollarily, if the strict application of the rules would tend to frustrate rather than promote justice, th[e] Court is not without power to exercise its judicial discretion in relaxing the rules of procedure x x x” (Villanueva v. People, G.R. No. 188630, February 23, 2011).

4. In another case, because of the application of the rule on liberal construction, the Court sustained the Sandiganbayan when it gave both the prosecution and the accused the opportunity to submit comments to the Pre-Trial Order or to modify their submissions or in some instances, even to withdraw the stipulations they made during the pre-trial even if the pre-trial has effectively been terminated. It is consistent with the discretion of the court to decide how best to dispense justice in accordance with the circumstances of the proceedings before it (Frisco San Juan v. Sandiganbayan, 561 SCRA 316, 325).

Equity jurisdiction and the liberal construction rule When the Court disregards procedural lapses, it does so in the

exercise of its equity jurisdiction and so that a case may be resolved on its merits based on the evidence presented by the parties (Frisco F. San Juan v. Sandiganbayan, 561 SCRA


316, 325, citing Active Realty and Development Corporation v. Fernandez, 537 SCRA 116).

III. NATURE OF PHILIPPINE COURTS

Courts of law and equity Philippine courts are both courts of law and equity. Hence, both

legal and equitable jurisdiction is dispensed with in the same tribunal (U.S. v. Tamparong, 31 Phil. 321, 327).

Application of equity; equity jurisdiction 1. Equity administers justice according to the basic tenets of

fairness. Equity denotes a concept of fairness, justness, and right dealing among men (Black’s, 5th Ed., 540). Equity seeks to reach and to do complete justice where the courts of law are incompetent to do so because of the inflexibility of the rules and the lack of power to adapt their judgments to the special circumstances of cases. Equity regards the spirit of the law and not its letter, the intent and not the form, the substance rather than the circumstance (Air Manila v. Court of Industrial Relations, 83 SCRA 579, 589).

2. Equity however, is not to be applied in all cases. Equity does not apply when there is a law applicable to a given case (Smith Bell Co. v. Court of Appeals, 267 SCRA 530, 542). For all its conceded merits, equity is available only in the absence of law and not as replacement. It cannot supplant, although it may, as it often happens, supplement the law (Tankiko v. Cezar, 302 SCRA 559, 570 citing Aguila v. Court of First Instance of Batangas, 160 SCRA 579). It is availed of only in the absence of a law and is never availed of against statutory law or judicial pronouncements (Velez v. Demetrio, 387 SCRA 232, 238; Bell v. Court of Appeals, 267 SCRA 530, 542; David-Chan v. Court of Appeals, 268 SCRA 677, 687).

3. In one case, the petitioner, upon sensing the inadequacy of her legal arguments pleaded that “those who have less in life should have more in law.” She also sought the application of the Filipino values of pakikisama and pakikipag-


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kapwa tao in resolving her case. In reaction to her plea, the Court declared:

“Such appeal of petitioner is based on equity which has been aptly described as ‘justice outside legality.’ How-ever, equity is applied only in the absence of, and never against, statutory law or judicial rules of procedure. As found by respondent court x x x such equitable arguments cannot prevail over the legal findings” (David-Chan v. Court of Appeals, 268 SCRA 677, 687).

4. In an action to annul a contract of sale of a land, the buyer moved for the court to order the seller to deposit in court the amount initially given to the seller as consideration for the land to prevent the dissipation of the amount paid. The seller opposed the motion arguing that a deposit is not among the provisional remedies enumerated in the Rules of Court. The Court nevertheless granted the motion. The Court considered the case as one that clearly showed a hiatus in the Rules of Court and in the law because deposit is not so provided under the Rules as a provisional remedy. If the hiatus is left alone, it will result in unjust enrichment in favor of the seller at the expense of the buyer. It may also imperil the obligation of restitution, a precondition to the annulment of a contract. This is a case of insufficiency of the law and Article 9 of the Civil Code mandates a ruling despite the “silence, obscurity or insufficiency of the laws.” This calls for the application of equity, which fills the open spaces of the law. In ordering the deposit, the court accordingly exercised its “equity jurisdiction” (Reyes v. Lim, 408 SCRA 560, 566).

5. The various rulings of the court seem to suggest that the term equity jurisdiction is used to describe the power of the court to resolve issues presented in a case in accordance with the natural rules of fairness and justice in the absence of a clear, positive law governing such issues.

Principle of judicial hierarchy (Bar 2011) 1. At the outset, it is an established policy that parties must

observe the hierarchy of courts before they can seek


relief directly from the Court. The rationale for this rule is two-fold: (a) it would be an imposition upon the limited time of the Court; and (b) it would inevitably result in a delay, intended or otherwise, in the adjudication of cases, which in some instances, had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because the Court is not a trier of facts. It is only for special and compelling reasons that this Court shall exercise its primary jurisdiction over the extraordinary remedy of writ of prohibition (People v. Azarraga, G.R. Nos. 187117 and 187127, October 12, 2011).

For instance, while it is true that the issuance of a writ of prohibition under Rule 65 of the Rules of Court is within the jurisdiction of the Supreme Court, a petitioner cannot seek relief from the Supreme Court where the issuance of such writ is also within the competence of the Regional Trial Court or the Court of Appeals. The Supreme Court is a court of last resort. It cannot and should not be burdened with the task of deciding cases in the first instance. Its jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist (Purok Bagong Silangan v. Yuipco, 489 SCRA 382, 397; Lim v. Vianzon, 497 SCRA 482, 492; Mangahas v. Paredes, 515 SCRA 709, 715).

2. Also, it was held that “x x x A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (‘inferior’) courts should be filed with the [RTC], and those against the latter, with the Court of Appeals” (Cruz v. Gingoyon, G.R. No. 170404, September 28, 2011).

3. One recent case gives a similar reminder that the Supreme Court’s original jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction is not exclusive. Its jurisdiction is concurrent with the Court of Appeals and with the Regional Trial Court in proper cases. This concurrence of jurisdiction, stressed the Court, does not grant upon a party seeking any of the extraordinary writs the absolute freedom to file his petition with the


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court of his choice like filing the petition in the Supreme Court which is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and what the court referred to as an immemorial tradition. “Unwarranted demands upon the Court’s attention must be prevented to allow time and devotion for pressing matters within its exclusive jurisdiction” (Cruz v. Gingoyon, G.R. No. 170404, September 28, 2011).

When the doctrine of hierarchy of courts may be disregarded (Bar 2011)

1. The Supreme Court however, may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations. Under the principle of liberal interpretation, it may, for example, take cognizance of a petition for certiorari directly filed before it. The Supreme Court has, in not a few cases, suspended its own rules and excepted a particular case from their operation whenever the interests of justice so require (Declarador v. Bansales, 499 SCRA 341, 348 citing Fortich v. Corona, 289 SCRA 624). But a direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition (Lim v. Vianzon, 497 SCRA 482, 492), such as cases of national interest and of serious implications justify the availment of the extraordinary remedy of writ of certiorari, prohibition, or mandamus calling for the exercise of its primary jurisdiction (Springfield Development Corporation v. RTC of Misamis Oriental, 514 SCRA 326, 342-343 citing Mangaliag v. Catubig-Pastoral, 474 SCRA 153).

2. The following pronouncements emphatically sum up the rule:

“A direct invocation of the Supreme Court’s original jurisdiction to issue extraordinary writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition” (Cruz v. Gingoyon, G.R. No. 170404, September 28,2011).


Doctrine of non-interference or doctrine of judicial stability (Bar 2011)

1. This principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other’s orders (Lapu-lapu Development and Housing Corporation v. Group Management Corporation, 388 SCRA 493, 508 citing People v. Woolcock, 244 SCRA 235). Hence, a Regional Trial Court has no power or authority to nullify or enjoin the enforcement of a writ of possession issued by another Regional Trial Court (Suico Industrial Corporation v. Court of Appeals, 301 SCRA 212, 213). The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review (Villamor v. Salas, 203 SCRA 540, 543).

2. The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the Supreme Court or Court of Appeals, it means that such body is co-equal with the Regional Trial Court in terms of rank and stature, and logically beyond the control of the latter (Philippine Sinter Corporation v. Cagayan Electric Power and Light Co., Inc., 381 SCRA 582, 591).

Constitutional and statutory courts 1. A constitutional court is one created by a direct

Constitutional provision. Example of this court is the Supreme Court of the Philippines. It owes its creation from the Constitution itself (Sec. 1, Art. VIII, Constitution of the Philippines). In the Philippines, only the Supreme Court is a constitutional court.

2. A statutory court is one created by a law other than the Constitution. All courts in the Philippines, except the Supreme Court, are statutory courts. They have been created by statutory enactments. The Sandiganbayan is not a constitutionally created court. It was not directly created by the Constitution but was created by law pursuant to a constitutional mandate. The 1973 Constitution required the then Batasang Pambansa to create a special court to be known as the San-


35

diganbayan (Sec. 5, Art. XIII, 1973 Constitution) and its existence continues to be recognized by the 1987 Constitution. While its existence is mandated by the Constitution, its creation was thru and by Presidential Decree No. 1486, issued by President Ferdinand E. Marcos pursuant to his legislative powers under Amendment No. 6 of the 1973 Philippine Constitution.

Civil and criminal courts 1. Civil courts are those which determine controversies

between private persons. Criminal courts are those which adjudicate offenses alleged to have been committed against the state (21 C.J.S., Courts, § 4).

2. Philippine courts exercise both civil and criminal jurisdictions.

Courts of record and courts not of record 1. ‘Courts of record’ are those which keep a written account

of its proceedings. Those courts which are not bound to keep such records are ‘courts not of record.’

2. One attribute of a court of record is the strong pre-sumption as to the veracity of its records that cannot be collaterally attacked except for fraud (20 Am Jur 2d, Courts, § 55).

3. The test that is entitled to considerable weight in determining whether or not a court is one of record is whether the legislature creating the court has or has not declared it to be a court of record (21 C.J.S., § 4).

4. All Philippine courts, including inferior courts, are now courts of record (RA. No. 2613).

Superior and inferior courts 1. In the general sense, a court is ‘superior’ or ‘inferior’ in

relation to another court. Hence, a Municipal Trial Court is inferior to a Regional Trial Court while the latter is inferior to the Court of Appeals. All courts in the Philippines are inferior to the Supreme Court.


2. A superior court is one with controlling authority over other courts, and with an original jurisdiction of its own. An inferior court is one which is subordinate to another court the judgment of which may be reviewed by a higher tribunal (21 C.J.S., Courts, §28).

Courts of general and special jurisdiction 1. Courts of general jurisdiction are those with competence

to decide on their own jurisdiction and to take cognizance of all cases, civil and criminal, of a particular nature. Courts of special (limited) jurisdiction are those which have a special jurisdiction only for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind (21 C.J.S., Courts, § 3).

2. A court may also be considered ‘general’ if it has the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions (Sec. 19[6J, Sec. 20, BP 129, Judiciary Reorganization Act of1980). It is in this context that the Regional Trial Court is considered a court of general jurisdiction.

Courts of original and appellate jurisdiction 1. A court is one with original jurisdiction when actions or

proceedings are originally filed with it. A court is one with appellate jurisdiction when it has the power of review over the decisions or orders of a lower court (21 C.J.S., Courts, § 3).

2. Metropolitan Trial Courts, Municipal Circuit Trial Courts, and Municipal Trial Courts are courts of original jurisdiction. The Regional Trial Court is likewise a court of original jurisdiction with respect to cases originally filed with it but is also a court of appellate jurisdiction with respect to cases decided by the Municipal Trial Courts within its territorial jurisdiction (Sec. 22, BP 129).

The Regional Trial Court is also a court of original jurisdiction with respect to a petition for a writ of amparo (Sec.


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3, The Rule on the Writ of Amparo) or a petition for a writ of habeas data (Sec. 3, The Rule on the Writ of Habeas Data).

3. The Court of Appeals is primarily a court of appellate jurisdiction with competence to review judgments of the Regional Trial Courts and specified quasi-judicial agencies (Sec. 9[3], BP 129). It is also a court of original jurisdiction with respect to cases filed before it involving issuance of writs of certiorari, mandamus, quo warranto, habeas corpus, and prohibition. It is also a court of original jurisdiction (and exclusive) over actions for annulment of judgments of Regional Trial Courts (Sec. 9[1][2], BP 129).

It is also a court of original jurisdiction with respect to a petition for a writ of amparo (Sec. 3, The Rule on the Writ of Amparo) or a petition for a writ of habeas data (Sec. 3, The Rule on the Writ of Habeas Data). These petitions may be filed originally not only with the Regional Trial Court, the Sandiganbayan or the Supreme Court but also with the Court or Appeals.

4. The Supreme Court is also fundamentally a court of appellate jurisdiction but it may also be a court of original jurisdiction over cases affecting ambassadors, public ministers and consuls, and in cases involving petitions for certiorari, prohibition and mandamus (Sec. 5[1], Art. VIII, Constitution of the Philippines). It may also be a court of original jurisdiction in a petition for a writ of amparo (Sec. 3, The Rule on the Writ of Amparo) or a petition for a writ of habeas data (Sec. 3, The Rule on the Writ of Habeas Data). Note: The Supreme Court en banc is not an appellate court to which decisions or resolutions of a division of the Supreme Court may be appealed (Bar 1990).

Original and exclusive jurisdiction distinguished 1. Original jurisdiction means jurisdiction to take cognizance

of a case at its inception, try it and pass judgment upon the law and facts, while exclusive jurisdiction precludes the idea of co-existence and refers to jurisdiction possessed to


the exclusion of others (Cubero v. Laguna West Multi-Purpose Cooperatives, Inc., 509 SCRA 410, 416).

2. A court may be conferred both original and exclusive jurisdiction over a particular subject matter. Examples: (a) The Municipal Trial Court has exclusive original jurisdiction over cases of forcible entry and unlawful detainer (Sec. 33[2], BP 129, as amended); (b) The Regional Trial Court has exclusive original jurisdiction over all civil actions in which the subject matter of the litigation is incapable of pecuniary estimation (Sec. 19[1], BP 129, as amended); (c) The Court of Appeals has exclusive original jurisdiction over actions for annulment of judgments of the Regional Trial Court (Sec. 9[2], BP 129, as amended).

Concurrent jurisdiction 1. This type of jurisdiction, also called ‘coordinate’

jurisdiction, is the power of different courts to take cognizance of the same subject matter. Where there is concurrent jurisdiction, the court first taking cognizance of the case assumes jurisdiction to the exclusion of the other courts.

Examples: (a) The Supreme Court has concurrent original jurisdiction

with Regional Trial Courts in cases affecting ambassadors, other public ministers, and consuls (Sec. 5, Art. VIII, Constitution of the Philippines; Sec. 21[2], BP 129);

(b) The Supreme Court has concurrent original jurisdiction with the Court of Appeals in petitions for certiorari, prohibition, and mandamus against the Regional Trial Courts (Sec. 5, Art. VIII, Constitution of the Philippines; Sec. 9[1], BP 129);

(c) The Supreme Court has concurrent original jurisdiction with the Court of Appeals and the Regional Trial Courts in petitions for certiorari, prohibition, and mandamus against lower courts and bodies and in petitions for quo warranto and habeas corpus (Sec.


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5, Art. VIII, Constitution of the Philippines; Sec. 9[1], BP 129; Sec. 21[1], BP 129).

2. The concurrent jurisdiction among courts of different ranks is subject to the doctrine of hierarchy of courts. For example, while it is true that the original jurisdiction of the Supreme Court to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction is concurrent with or shared by the Supreme Court with the Regional Trial Courts and the Court of Appeals, a direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition (Lim v. Vianzon, 497 SCRA 482, 491). The rule simply means that the petition must, as a rule, be filed first with the court of the lowest rank unless there are special countervailing reasons justifying its filing in the first instance with a higher court.

Meaning of ‘court’ A court is an organ of government belonging to the judicial

department the function of which is the application of the laws to controversies brought before it as well as the public administration of justice (Black’s, 5th Edition, 356). A court is called upon and authorized to administer justice. Sometimes it refers to the place where justice is administered (20 Am Jur2d, Courts, § 1,1965; 21 C.J.S., Courts, § 1).

A court distinguished from a judge Although the terms have often been erroneously used

interchangeably, they have the following marked distinctions: (a) A court is a tribunal officially assembled under authority

of law; a judge is simply an officer of such tribunal (Wagenhorst v. Philadelphia Life Insurance Co., 358 Pa. 55,55A2d 762, cited by Black’s 5th Ed.).

(b) A court is an organ of the government (Black’s, 5th Ed., 318) with a personality separate and distinct


from the person or judge who sits on it (People v. Carlos, 78 Phil. 535, 543).

(c) A court is a being in imagination comparable to a corporation, whereas a judge is a physical person (People ex rel. Herndon v. Opekl, 188 III 194, 58 NE 996, cited by Black’s, 5th Ed.).

(d) A judge is a public officer (Todd v. United States, 158 US 278, 39 L Ed 982, 15 S ct. 889, cited by Black’s, 5th Ed.) while a court is an office.

(e) Jurisdiction does not attach to the judge but to the court. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. (ABC Davao Auto Supply v. Court of Appeals, 284 SCRA 218, 222).

IV. THE BASIC FRAMEWORK OF ORDINARY CIVIL ACTIONS

The materials that follow are parts of an honest attempt to demystify procedural principles, to bring civil procedure to a more understandable and workable level, and to dispel the impression that remedial law is a subject that is either abstract or too circuitous for comfort.

To a beginner, the various principles in the Rules of Court seem to be a mere mishmash of rules which leaves the uninitiated perplexed as to how the rules could be applied in the real world. The impression is actually only initial and does not reflect what procedural law really is. In reality, procedural law is far from being the difficult subject it has been traditionally portrayed. In time the student of procedure will learn to appreciate how the subject has metamorphosed into a system with a logic of its own that is both rhythmic and fascinating.


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To aid the reader feel his way through the various rules, the principles in this material have been rearranged to enable him to break free from an overly technical approach to the subject and to approximate the application of procedural rules in both the bar examinations and litigation situations.

Experience has told us fairly well that it is the ability to conceptualize the relationships among procedural rules, which enables one to respond with ease to even the most cerebrally formulated questions in the bar and even to unexpected twists in the field of litigation. Although there are aspects of the Rules, in fact a substantial number of them, which have to be committed to memory, route memory has never been the key to success in both litigation and the bar examinations. Hence, the materials that follow have been presented to allow the reader to develop on his own a more practical approach to procedural principles.

The principles presented mirror the most basic aspects of the civil litigation process and do not embody all the possible issues which may arise in litigations. The mastery of these concepts will allow the reader to grasp the most essential procedural principles, so he may later on proceed to a level of understanding beyond mere fundamentals.

This work does not pretend to be complete and exhaustive. There are certain matters in the litigation process which suddenly occur in the course of the proceedings and which cannot be reasonably foreseen in this material. Besides, there are topics which, due to the demands of both scope and priorities, have to be intentionally left out. This work contains only those topics deemed indispensable to the acquisition of the core knowledge required to pass the bar examinations and to start a career in trial practice. The other more complicated situations in remedial law would later on automatically present themselves to the new lawyer as he acquires experience in the field.

Care has been taken to avoid the use of impenetrable legalese because emphasis has been made on bringing civil


procedure to a more practical dimension and whenever necessary, principles in substantive law have been included in the discussion of the topics found in this work so the reader may see the rules from a wider perspective. Substantive law, after all, constitutes the foundation of procedural law.

I. Complaint As a starting point, it must be emphasized that the rules of civil

procedure will come into play only with the filing of a complaint or in some actions or proceedings, a petition. It is the filing of a complaint that gives life to procedural rules and triggers their application.

The complaint is the first pleading filed with the court by a party called the plaintiff. The primary purpose of this pleading is to apprise the adverse party, called the defendant of the nature and the basis of the claim.

A. Right of action and cause of action 1. From the point of view of a party, the application of the

Rules of Civil Procedure starts when one feels that another has violated his rights.

A complaint is filed not because one simply wants to file a complaint. The litigation process involves much more than the mere mechanical act of the drafting of a complaint and the filing of the same with the court. Before filing the complaint, the lawyer initially determines whether or not his client, the plaintiff, has a cause of action against the defendant based on the provisions of substantive law. An inquiry into substantive law is imperative because substantive law is the very basis of procedural law. It is actually substantive law which supplies the legal basis for a cause of action.

While it is procedural law which outlines the methods and processes by which one may sue another for the enforcement or protection of his rights, it is substantive law which supplies the legal basis for the existence of the right itself and the corresponding legal prerogative to demand its protection. For


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instance, a complaint for damages allegedly arising out of the negligent driving by the defendant of a motor vehicle, does not find its basis in procedural rules. The complaint is one that is actually predicated upon the substantive law provisions on quasi-delicts described in Art. 2176 of the Civil Code of the Philippines. It is also the substantive law provisions of the Revised Penal Code and the Civil Code, for example, which give an owner of a particular personal property the right to recover its possession from a thief. Also, it is the provisions on quasi-contracts which furnish the basis for a supposed recipient of money to recover the same from someone who received it by mistake. The law on common carriers is likewise the reason for a passenger’s right to recover damages for the injuries he may have sustained in the course of his being transported by the carrier without him having the obligation to prove the negligence of the carrier.

A cause of action involves a right of the plaintiff and a violation of this right by the defendant. Without a right and a violation of this right, there can be no cause of action and without this cause of action there would be no right to file a suit against the defendant. This right to file a suit is called a right of action. The right of action, which is procedural in character, is the consequence of the violation of the right of the plaintiff. Hence, the rule: There is no right of action where there is no cause of action.

B. Jurisdiction, venue and parties, prescription, and conditions precedent

1. If a cause of action exists, the lawyer starts considering the preparation of the complaint. But before doing so, he proceeds to determine the court that should take cognizance of the action. This involves an inquiry into the laws on jurisdiction because the plaintiff is, as a fundamental principle, obligated to file his complaint in the court upon which the law has conferred jurisdiction over the subject matter of the action. Filing the complaint in the wrong court is a ground for dismissal of the complaint either upon proper motion by the adverse party or upon the court’s own motion (motu proprio).


The counsel then goes on to determine the place where the action is to be filed. In procedural terms, this place is called the venue of the action. A complaint filed even in the court with the appropriate jurisdiction runs the risk of being dismissed on motion if commenced in the wrong place.

In determining the venue of an ordinary civil action, the plaintiff inevitably will have to initially consider whether or not the action to be filed is a real action or a personal action. If the action is real (one that affects title to, possession of, or any interest in real property), the action shall be commenced and tried in the place where the real property involved or a portion thereof is situated.

If the action is personal, the action may be commenced and tried where the plaintiff resides or where the defendant resides, or in case of a non-resident defendant, where he may be found, at the election of the plaintiff.

The plaintiff, through counsel, will have to look into any possible restrictive stipulations on venue. If the parties have agreed on an exclusive venue in writing prior to the filing of the action and the agreed venue is contemplated to be so exclusive, then the place stipulated is the only venue of the action. This stipulation precludes the filing of the action in some other place.

Counsel likewise will proceed by ascertaining whether or not his client, the plaintiff, is a real party in interest. A plaintiff who claims to be one must sufficiently allege ownership of a right violated by the adverse party. In the words of the Rules, he must be one who “stands to be benefited or injured by the judgment in the suit or the one entitled to the avails of the suit.” Counsel then will find himself expanding his analysis by determining those who are to be impleaded as defendants. This determination is vital because as a rule, a suit can be commenced only against one averred to have violated the plaintiffs rights. All these determinations mean that he sees to it that the rules on parties are complied with. In short, as parts of his initial preparations for the case, the lawyer


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meticulously pours over the principles governing actions, right of action, causes of action, jurisdiction, venue, and parties.

2. All the above principles having been considered, counsel will be obligated to thoroughly and carefully verify from the substantive laws whether or not there still exists a sustainable cause of action by confronting himself with a very basic question: Is the action barred by the statute of limitations? If it was, then the right of action has ceased. It has ceased because it has prescribed and prescription is one of the well-recognized grounds for the dismissal of a complaint, the same being a mode of extinguishment of a legal obligation. For example, under Art. 1144 of the Civil Code of the Philippines, actions upon a written contract, upon an obligation created by law, or upon a judgment prescribe after ten (10) years from the time the cause of action accrues. The same Code provides in Art. 1147 that actions for forcible entry and unlawful detainer must be commenced within one (1) year from the accrual of the cause of action. Enshrined in the Rules is the rule that when it appears from the pleadings or from the evidence on record that the action has prescribed, the court is mandated by the Rules to dismiss the claim. When dismissed on the ground of prescription, the dismissal shall bar the re-filing of the same action or claim.

3. If the action requires the performance of conditions precedent, then compliance with these conditions is imperative and such compliance cannot be conveniently ignored. For instance, there are certain cases where parties are required to avail of barangay conciliation proceedings before invoking judicial intervention. Also, parties need to undergo arbitration processes before seeking judicial relief when so required by contractual stipulations. Compliance of condition precedents is not however, sufficient. The compliance must likewise be alleged in the complaint.

There are conditions precedent which actually constitute elements of the plaintiff’s cause of action. An action for collection of a sum of money for example, must be preceded by a demand to pay pursuant to Art. 1169 of the Civil Code of


the Philippines. Under this provision, the debtor, as a rule, incurs no delay unless there be a prior demand made by the creditor. An action for unlawful detainer predicated upon the non-payment of rentals must likewise come only after a demand upon the defendant to pay and to vacate the premises and such demand is not heeded by the latter. Actions between members of the same family must be preceded by attempts to have the controversy settled and compromised by virtue of Art. 151 of the Family Code of the Philippines. The Family Code declares in unequivocal language that no suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest ef-forts toward a compromise have been made, and that such efforts have failed. If it is shown that no such efforts were made, the case has to be dismissed. Also, when there is a need to exhaust administrative remedies before judicial intervention is sought, then the plaintiff should allege and show compliance with this condition.

The performance or occurrence of all conditions precedent need not be averred with particularity. A general averment of the same is sufficient.

C. Preparation of the complaint 1. The preparation of a complaint requires recognition and

mastery of certain principles. Most prominent among these is the rule that the complaint or any other pleading is not designed to be a narration and an exposition of evidentiary matters but properly a statement only of the ultimate facts which constitute a party’s claim or defense. Such facts are to be alleged plainly, concisely, and directly in a methodical and logical form. Because the rule requires the allegations only of ultimate facts, the statement of mere evidentiary facts are to be omitted. Also to be omitted are statements constituting mere conclusions of law. Evidentiary matters are to be presented in the trial and have no place in a pleading like a complaint. Also, conclusions are to be made by the court and not by a party. Hence, conclusions have also no place in pleadings.

CHAPTER I 47 GENERAL PRINCIPLES

There are situations where the suit is predicated upon the alleged fraudulent acts of the defendant. If this be so, the rule requires that the circumstances constituting fraud or mistake must be stated with particularity to enable the court to determine the type of fraud committed by the defendant and the subsequent liability of the defendant, if there be any. Under the Civil Code, depending on the kind of fraud committed, fraud may be a cause for the annulment or rescission of the contract. It may be a ground for liability for damages alone. It may even be a cause for an action for the reformation of an instrument. The same rule mandating a particular narration of circumstances of fraud applies to averments of mistake. Averments of malice, intent, knowledge or other condition of the mind of a person may, however, be averred generally.

An action filed may sometimes be based upon a document as when a collection suit is based upon a promissory note executed by the defendant. Such document need to be properly pleaded in the complaint by setting forth the substance of the instrument in the complaint and by attaching the original or a copy thereof as an integral part of the complaint. It is possible for the defendant to deny the genuineness and due execution of the promissory note. In such an event, a mere specific denial of such matters would not be a sufficient denial. The denial must be under oath, otherwise the defendant would be deemed to have admitted the genuineness and due execution of the note.

2. The complaint must specify the relief sought although the rule allows the addition of a general prayer for such other reliefs as the court may deem just or equitable. Although part of the complaint, the relief or prayer is not largely determinative of the cause of action. The nature of the cause of action is primarily determined by the allegations in the body of the complaint and not by the prayer.

3. The complaint must be dated. It must likewise be signed by the party or by the counsel representing him. Signing the complaint is mandatory because an unsigned pleading produces no legal effect.


4. When it is counsel who signs the pleading, this signature constitutes a certificate by him that he has read the pleading, that to the best of his knowledge, information, and belief, there are good grounds to support it, and that it is not interposed for delay.

5. The complaint must designate the address of the party or his counsel. This address should not be a post-office box.

6. Should a complaint or any other pleading be under oath, verified or accompanied by affidavit? The general rule on the matter is that a pleading need not be verified unless a verification is specifically mandated by law or by a particular rule. For example, all pleadings under the Rules on Summary Procedure have to be verified. Petitions for certiorari, prohibition, and mandamus must likewise be verified.

7. The complaint and other initiatory pleading must contain or be accompanied by a certification against forum shopping where the plaintiff or principal party certifies, among others, that he has not commenced any action or filed any claim involving the same issues in any other tribunal. Failure to comply with this requirement is a ground for the dismissal of the complaint upon motion and after a hearing.

8. Depending upon the nature of the action, the plaintiff may avail of any of the provisional remedies provided for under the rules like preliminary attachment, preliminary injunction, receivership, replevin or support pendente lite. In an action for forcible entry, for instance, the plaintiff may ask for a writ of preliminary mandatory injunction to restore him in his possession during the pendency of the main case. In an action for collection of a sum of money, the plaintiff may, at the commencement of the action, apply for the issuance of a writ of preliminary attachment of the defendant’s properties where for instance, it is shown that the defendant is about to depart from the Philippines with the intention of defrauding the plaintiff-creditor. This attachment is obtained to secure the future execution of the judgment to avoid the sad spectacle of a winning party literally holding an empty bag because the


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sheriff cannot find properties of the losing party to satisfy the judgment. In an action for support, the resolution of which may possibly come only after a protracted litigation, the plaintiff may ask the court to order the defendant to give support to the plaintiff during the pendency of the action. This support is known in the Rules as support pendente lite. In an action for damages against an electric company which wrongly cut off the power supply to the plaintiffs factory, the latter may ask the court to issue a writ of preliminary mandatory injunction to restore power in the meantime that litigation on the damage suit against the electric company is in progress.

D. Filing of the complaint 1. After all those mentioned above have been considered and

duly complied with, the complaint shall now be filed. The filing of the complaint is the act of presenting the same before the clerk of court.

2. The rule in this jurisdiction is that when an action is filed, the filing must be accompanied by the payment of the requisite docket and filing fees. The fees must be paid because as a rule, the court acquires jurisdiction over the case only upon payment of the prescribed fees. Without payment, the general rule is that the complaint is not considered filed. Payment of the full amount of the docket fee is mandatory and jurisdictional. This rule was however, relaxed by the Supreme Court in some cases in which payment of the fee within a reasonable time but not beyond the prescriptive period was permitted. If the fees are not paid at the time of the filing, the court acquires jurisdiction only upon full payment of the fees within a reasonable time as the court may grant, barring prescription.

3. Even on appeal, the general rule is that payment of docket fees within the prescribed period is mandatory for the perfection of the appeal although there were instances when the rule had been applied with liberality. It is well-established that as a general rule, the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. This is so because a court acquires jurisdiction over


the subject matter of the action only upon the payment of the correct amount of docket fees regardless of the actual date of filing of the case in court.

4. When the complaint is filed and the prescribed fees are paid, the action is deemed commenced. The court then acquires jurisdiction over the person of the plaintiff and the running of the prescriptive period for the action is tolled.

E. Possible proceedings after the filing of the complaint 1. Dismissal of the action by the plaintiff — Sometimes after

the complaint has been duly filed, the plaintiff may, for reasons personal or otherwise, entertain doubts on the propriety of the filing of the action against the defendant. In this case, he may exercise the option of dismissing his own complaint. If the dismissal is to be made before the adverse party has served an answer or a motion for summary judgment, he may have his own complaint dismissed by the mere filing of a notice of dismissal. Upon such notice, the court shall issue an order confirming the dismissal. The dismissal by notice of dismissal is without prejudice to its being refiled later, unless otherwise stated in the notice of dismissal or when the refiling is barred by what jurisprudence cedis ‘the two- dismissal’ rule because the action had already been previously dismissed twice by the plaintiff. As long as the dismissal is to be made prior to the service by the adverse party of his responsive pleading, the dismissal under this rule is a matter within the sole discretion of the plaintiff. The confirmation of the dismissal by the court through an order shall come as a matter of course.

2. After service of the answer or a motion for summary judgment, the plaintiff can no longer have his action dismissed by mere notice. The plaintiff now has to file a motion to dismiss his complaint. The granting or the denial of the motion to dismiss is now a matter addressed to sound judicial discretion because this type of dismissal is no longer a matter of right. If the court allows the dismissal of the complaint, only the complaint is dismissed. A counterclaim already pleaded prior


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to the service upon the defendant of the motion for dismissal, is not affected by the dismissal of the complaint and is without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. A dismissal under this rule, is deemed a dismissal without prejudice, unless otherwise stated in the order of the court.

3. Amendment of the complaint — Instead of dismissing his complaint as explained in the immediately preceding paragraphs, it frequently happens that the plaintiff finds the need to amend his complaint. Amendment of his pleading is a matter of right as long as the said amendment is made before the other party has served a responsive pleading. So if the plaintiff desires to amend his complaint before the defendant serves his answer, the amendment may be done as a matter of right and the court has no discretion on the matter. In such a case, the amendment has to be accepted. If the court refuses to accept an amendment made as a matter of right, the court may be compelled to do so through the special civil action of mandamus. Note that an amendment made as a matter of right may, by the terms of the Rules, be made only once.

May the plaintiff amend his complaint as a matter of right even after a motion to dismiss has been served? He may. This is because a motion to dismiss is not a responsive pleading. Hence, his right to amend his complaint is not affected by the filing of the motion to dismiss. After a responsive pleading has been served, amendment must be by leave of court. This means for example, that after an answer has been served, an amendment may be done only with the approval of the court. Example: A complaint was filed. The defendant served an answer to the complaint. The plaintiff now decides to amend his complaint. The amendment is no longer a matter of right because an answer has already been served by the defendant. The amendment would now require leave of court and the amendment has become a matter of judicial discretion.

Although existing jurisprudence adopts a liberal policy on amendments, the amendment may be refused if it appears to the court that the amendment is intended for delay. It may


also be denied if the amendment is no longer a matter of right and the proposed amendment would result in a drastic change in the cause of action or defense or a change in the theory of the case. Also, when the court has no jurisdiction over the subject matter of the action and the amendment is for the purpose of conferring jurisdiction upon the court where the amendment is no longer a matter of right, the amendment shall not be allowed. In the latter case, since the court is without jurisdiction over the action, it has no jurisdiction to act on the motion for leave to amend.

An amendment may also arise by implication when issues not raised in the pleadings are tried with the express or implied consent of the parties as when no objection is interjected on the evidence offered on a matter not raised in the pleadings. When this occurs, the issues tried with the consent of the parties shall be treated as if they had been raised in the pleadings. The pleadings may then be amended to conform to the evidence although an actual amendment need not be made because failure to so amend the pleadings will not affect the result of the trial on said issues.

II. Summons; motion for bill of particulars; motion to dismiss 1. Upon the filing of the complaint and the payment of the

requisite legal fees, the clerk of court shall issue the corresponding summons to the defendant directing him to file an answer to the complaint and that unless he does so, the court may render a judgment against him by default and grant to the plaintiff the relief applied for. Attached to the summons is a copy of the complaint.

The summons and a copy of the complaint are to be served upon the defendant in person but if the defendant cannot be served despite efforts to serve him in person, summons may be served by an alternative mode called substituted service. This consists in serving the summons at the residence of the defendant or his regular place of business with a person qualified to so receive the summons in accordance with the


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Rules. Subject to certain exceptions, the long standing rule is that summons by publication is not a recognized mode of service for the purpose of acquiring jurisdiction over the person of the defendant.

2. Recall that the filing of the complaint enables the court to acquire jurisdiction over the person of the plaintiff. This jurisdiction however, does not extend to the person of the defendant. Absent a voluntary appearance, it is the service of summons upon the defendant which enables the court to acquire jurisdiction over his person in those actions traditionally called actions in personam. The summons is a coercive process which places the person, even of the unwilling defendant, under the jurisdiction of the court. Service of summons likewise represents a compliance with the rule on notice, an essential element of constitutional due process.

The rules on summons mandate specific procedures for service upon certain classes of defendants. When for instance, the defendant is a minor or an incompetent, service of summons shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem or in the case of a minor, upon his father or mother.

If the defendant is a domestic corporation or partnership, service may be made on certain specific persons only like the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

Also, when the defendant is a prisoner confined in a jail or institution, service shall be effected upon him (the prisoner) by the officer having management of the jail or institution. Such manager is deemed deputized as a special sheriff for said purpose.

One rule that stands out under the topic on summons is the rule that service of summons is not always required to enable the court to acquire the requisite jurisdiction over the person of the defendant in certain actions. Service of summons may be dispensed with if the defendant makes a voluntary appearance. Under the Rules, the defendant’s voluntary


appearance in the action shall be equivalent to service of summons. 3. Motion for bill of particulars — Although the summons

directs the defendant to file an answer to the complaint, the defendant is procedurally under no obligation to outrightly file an answer since the rule allows him certain procedural options. For instance, if after reading the complaint, the defendant finds that, because of the ambiguity in certain material allegations of the complaint, he cannot possibly file an intelligent answer, he need not serve his answer unless and until the alleged ambiguities are clarified by the plaintiff. These ambiguities may be sought to be clarified through a bill of particulars submitted by the plaintiff upon order of the court and procured by the adverse party by his filing of a motion for bill of particulars. It must be clarified that a motion for bill of particulars is not solely directed to the complaint. Any other pleading may be the object of a motion for bill of particulars.

4. Motion to dismiss — After the plaintiff submits a bill of particulars which clarifies the ambiguities in the complaint, the defendant may now file his answer. If however, from the reading of the complaint, a solid basis exists for the immediate dismissal of the action, the defendant, instead of filing his answer, may avail of another option, i.e., to file a motion to dismiss.

There are numerous grounds for a motion to dismiss and these grounds must be invoked by filing the requisite motion. Normally, a court will wait for a party to file a motion to dismiss even if the ground for dismissal is known to it. For instance, unless the case is covered by the Rules on Summary Procedure, the court will and ought to refrain from dismissing a complaint on the ground of improper venue even if the venue is blatantly defective. Venue is a matter designed for the convenience of the parties and if no party complains about the venue, it is not for the court to take up the cudgels for any party. There are however, grounds for dismissal which the court will recognize on its own motion. Lack of jurisdiction over the subject matter of the action, litis pendencia, res judicata, and prescription


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are reasons for the court to effect a motu proprio dismissal of the complaint whenever any of these grounds appears from the pleadings or from the evidence on record.

III. Answer; default 1. If there exists no ground for a motion to dismiss or if the

motion is rightfully denied, the defendant has to file his answer. The answer is the pleading which is considered as the responsive pleading to the complaint. The answer gives notice to the plaintiff as to which allegations in the complaint he decides to contest and thus, put in issue. The answer contains both the negative and affirmative defenses of the defendant.

2. The filing of an answer is important. Failure of the defendant to file an answer will entitle the plaintiff to file a motion to declare the defendant in default. When he is declared in default, the defendant loses his standing in court and the court may proceed to render judgment granting the plaintiff the relief as his complaint may warrant, unless in its discretion, the court requires the plaintiff to submit evidence on his claim.

An important principle in this regard is the rule that the court’s declaration of default should be preceded by a motion to declare the said party in default together with proof of such failure. The rule therefore, precludes the court from declaring the defending party in default on its own motion. Although declared in default, the party so declared shall still be entitled to notice of subsequent proceedings and is accorded a relief from the order. A party declared in default may, at any time after notice thereof and before judgment, file a motion under oath to set aside the order of default. The motion must show that his failure to answer was due to fraud, accident, mistake, or excusable negligence, and that he has a meritorious defense. The order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

Another important rule in relation to default is that a default order will not be issued in an action for annulment of marriage, action for declaration of nullity of marriage,


or action for legal separation, even if the defendant fails to answer. Instead, the court shall order the prosecuting attorney to investigate whether or not collusion exists between the parties and prevent fabrication of evidence.

When the order of default ripens into a judgment by default, there is a limit imposed by the Rules on the extent of relief to be awarded in the judgment. A judgment rendered against a party in default shall not exceed or be different in kind from that prayed for nor award unliquidated damages.

3. The answer to the complaint must specifically deny the material averments of the complaint because material averments not specifically denied are deemed admitted. If the answer admits the material averments of the complaint, the answer is deemed to have failed to tender an issue. Since there are no triable issues, a trial is completely unnecessary. The plaintiff may then file a motion for a judgment on the pleadings and the court may direct a judgment based on the pleadings already filed.

4. A judgment on the pleadings is not to be confused with a summary judgment. A judgment on the pleadings is rendered because, as disclosed by the pleadings, there is no issue in the case either because the answer fails to tender an issue or because it admits the material allegations of the complaint. A judgment on the pleadings is based, just as the name tells us, on the pleadings of the parties. A summary judgment is based not only on the pleadings of the parties but also on their affidavits, depositions, or admissions. The basis of a summary judgment is not the absence of an issue but the absence of a genuine issue in the case. Where there is an issue in the case but the issue does not concern any material fact, as when the issue is merely the amount of damages, there is no genuine issue, and a summary judgment would be proper.

5. It happens frequently enough that the defendant has his own claim against the plaintiff. When the defendant files his answer to the complaint, said answer may be coupled with a counterclaim, which is a pleading in its own right. A counterclaim is a pleading which sets forth a claim which


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a defending party may have against an opposing party. A counterclaim is always directed against an opposing party.

The counterclaim may be one that is compulsory or one that is permissive. A compulsory counterclaim which a defending party has at the time he files his answer shall be contained therein. A permissive counterclaim does not have to be raised in the same proceedings because by its nature, it could be invoked as an independent action.

6. There are instances when two or more defendants are named in a complaint. It also happens that one defendant has a claim against his co-defendant, a claim arising out of the transaction or occurrence which is the subject matter of the complaint. The claiming defendant may then, in his answer, interpose a pleading against his co-defendant. This pleading is known as a cross-claim. This is a pleading containing the claim by one party against a co-party. Thus, if P files an action for a sum of money against A and B, A may file a cross-claim against B, his co-defendant. If A files a claim against P, such claim is called a counterclaim, not a cross-claim.

7. There are also cases when a defendant named in the complaint, has a cause of action against one who is not a party to the action. This cause of action is a claim against a third person either for contribution, indemnity, subrogation, or any other relief in respect of the plaintiffs claim. The defendant may bring in the third person into the suit and implead him as a party by filing, with leave of court, a third-party complaint against him, thus making him a party to the action.

8. Recall that the defendant files an answer to the complaint. This answer is the responsive pleading to the complaint. May the plaintiff likewise make his own response to the answer? The plaintiff can. Upon receipt of the answer of the defendant, the plaintiff may respond to the answer. This response is done through a pleading called a reply. The purpose of a reply is to deny or allege facts in denial or avoidance of new matters alleged in the answer. A reply is the plaintiffs responsive pleading to the answer of the defendant to the complaint. A reply, unlike the answer, is not a compulsory


pleading. While the failure to file an answer may lead to a dec-laration of default, the failure to file a reply does not have the same consequence. The failure to file a reply will not likewise result in the implied admission of the material allegations in the answer because allegations of new matters in the answer even if not replied to, are deemed controverted or denied.

9. Recall also that a person not a party to the original action may be impleaded by an original party and brought into the action through a pleading called a third-party complaint. Now, what if a person not a party to the complaint wants to be a party to the action, and no party is impleading him as a defendant through a third-party complaint? How could this be procedurally possible? There are provisions in the Rules that adequately meet this kind of situation. This is made possible through a process called intervention. Under the Rules, if at any time before judgment, a person not a party to the action believes that he has a legal interest in the matter in litigation in a case in which he is not a party, he may, with leave of court, file a complaint-in-intervention in the action if he asserts a claim against one or all of the parties. On the other hand, if he unites with the defending party in resisting a claim against said party, he may file an answer-in-intervention.

IV. Pre-trial 1. After the last pleading has been served and filed, it is the

duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. A pre-trial is mandatory and failure to appear by either party will result in adverse consequences for the absent party. In a pre-trial, the parties shall, among others, consider the possibility of an amicable settlement or submission of the case to alternative modes of dispute resolution.

2. During the pre-trial stage and generally at any time even before pre-trial or trial, the parties may obtain information from each other through the employment of devices collectively known as discovery procedures. Thus, a party may avail of the various modes of discovery like depositions, interrogatories to


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parties, request for admission, production and inspection of documents, and physical and mental examinations of persons.

V. Trial Should there be no amicable settlement or a compromise forged

between the parties, the case will be set for trial. During the trial, the parties present their evidence on their claims and defenses. The plaintiff presents his evidence first. After he rests his case, the defendant will present his own evidence. However, if the defendant believes that upon the facts and the law, the plaintiff is not entitled to relief, he may, instead of presenting his own evidence, move for the dismissal of the case. He does so by way of a demurrer to evidence. If the demurrer is denied, the defendant still has the right to present his evidence. If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence.

A trial is not an indispensable stage of a civil action. A judgment may be rendered even without a trial as when a case is permanently dismissed as a consequence of a motion to dismiss on certain grounds like prescription or bar by a prior judgment. A judgment may also be rendered on the pleadings. Here no trial is required because the basis of the decision would merely be the pleadings of the parties. A judgment upon a compromise may also occur even without a trial.

VI. Judgment 1. A judgment is rendered after the submission of the

evidence of the parties has been concluded. It is the decision of the court and represents its official determination of the respective rights and obligations of the parties to the case.

2. There is no oral judgment under the Rules. It has to be in writing, personally and directly prepared by the judge, stating clearly the facts and the law on which it is based, signed by him, and filed with the clerk of court.

3. Central to the concept of a judgment is the date of entry of the judgment which under current procedure should


also be the date of the finality of the judgment. The date of entry of the judgment finds relevance as when the judgment is to be executed or when later on a litigant files a petition for relief from judgment.

VII. Post judgment remedies 1. The judgment will declare inevitably that a party wins

and the other party loses the litigation. The judgment is not the end for the losing party because he is afforded remedies against the adverse judgment. These remedies may be categorized into (a) remedies before the judgment becomes final and executory, and (b) remedies after the judgment becomes final and executory.

2. Before the judgment becomes final and executory the aggrieved party may file (a) a motion for reconsideration, (b) a motion for new trial, or (c) an appeal.

3. After the judgment becomes final and executory, a party may no longer appeal because the period for appeal has already lapsed. The judgment has become final and executory and the prevailing party may, at anytime within five years from its entry, file a motion for the execution of the judgment rendered in his favor. The losing party may however, avail of extraordinary remedies at this stage like (a) a petition for relief, (b) an action to annul the judgment, (c) certiorari, or (d) even attack the judgment collaterally when the nullity of the judgment is plain and evident on its face.

VIII. Execution and satisfaction of judgments When all the remedies available to a party have been

exhausted and the case is finally decided, the judgment of the court shall then be subject to execution. This is the remedy afforded by procedural rules for the enforcement of the judgment. It is the fruit as well as the end of the action.

Postscript: A separate second volume of this material will discuss provisional remedies and special civil actions.

— oOo —

Chapter II

JURISDICTION AND VENUE I. JURISDICTION

A. Jurisdiction in General

Jurisdiction; meaning 1. Jurisdiction is the power and authority of the court to

hear, try and decide a case (Cuenca v. PCGG, 535 SCRA 102, 114; Asia International Auctioneers, Inc. v. Parayno, 540 SCRA 536, 546). It has also been referred to as the power or capacity given by the law to a court or tribunal to entertain, hear, and determine certain controversies (De la Cruz v. Court of Appeals, 510 SCRA 103,104).

It has reference to the power of the court over the subject matter, over the res or property in contest, and to the authority of the court to render the judgment or decree it assumes to make (20 Am Jur §88 1965).

2. Jurisprudence considers jurisdiction as not only the authority of the court to hear, try, and determine a case. It is also considered as an authority to execute the decisions rendered by the court.

It was held that the power to control the execution of its decision is an essential aspect of jurisdiction and that the most important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of litigants to prevent unfairness (Echegaray v. Secretary of Justice, 301 SCRA 96, 108).

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3. Echegaray, in affirming that courts have the inherent and necessary power of control of its processes and orders to make them conformable to law and justice, cites Sec. 6 of Rule 135 which provides:

“x x x when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.”

Jurisdiction is not the power of the judge Jurisprudence holds that jurisdiction is not the authority of the

judge but of the court. For instance, in ABC Davao Auto Supply, Inc. v. Court of Appeals, 284 SCRA 218, 222, it was stressed that jurisdiction does not attach to the judge but to the court. Hence, the continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it.

Jurisdiction does not refer to the decision itself 1. Jurisdiction is the authority to decide a case, and not the

decision rendered therein (Republic v. “G” Holdings, Inc., 475 SCRA 608, 619).

2. The authority to decide a case at all and not the decision rendered therein, is what makes up jurisdiction. The fact that the decision is erroneous does not divest the court that rendered it of the jurisdiction conferred by law to try the case. Since jurisdiction is the power to hear and determine a particular case, or the jurisdiction over the subject matter, it does not depend upon the regularity of the exercise by the court of its power (Lim v. Pacquing, 236 SCRA 211, 219; Citations omitted).

CHAPTER II JURISDICTION AND VENUE

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Test of jurisdiction The test of jurisdiction is whether the court has the power to

enter into the inquiry and not whether the decision is right or wrong (Herrera v. Barretto, 25 Phil. 245, 252 citing Colton v. Beardsly, 38 Barb., 51). The question, therefore, of whether a court has jurisdiction over the subject matter, calls for interpretation and application of the law of jurisdiction which distributes the judicial power among the different courts in the Philippines (Reyes v. Diaz, 73 Phil. 484, 486).

Duty of a court to determine its jurisdiction 1. Courts are bound to take notice of the limits of their

authority and they may act accordingly by dismissing the action even though the issue of jurisdiction is not raised by the pleadings or not even suggested by counsel (Ace Publications v. Commissioner of Customs, 11 SCRA 147,153).

2. When it appears that the court has no jurisdiction over the subject matter of a complaint filed before it, the court has the duty to dismiss the claim and can do so motu proprio.

Under the Rules, “when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter x x x the court shall dismiss the claim (Sec. 1, Rule 9, Rules of Court).

3. Even if the parties do not challenge the jurisdiction of a court or tribunal, this does not prevent the court from addressing the issue especially where the lack of jurisdiction is apparent on the face of the complaint or petition (Heirs of De la Cruz v. Heirs of Cruz, 475 SCRA 743, 756; Bar 1992).

4. Foreign jurisdictions with rules substantially similar to ours have declared that a court having jurisdiction over a case has not only the right, the power, or the authority, but also the duty, to exercise that jurisdiction and to render a decision in a case properly submitted to it. A court cannot decline to exercise its jurisdiction merely on the ground of the motive or ulterior purpose of the plaintiff in bringing the suit. Accordingly, the failure of a court to adjudicate a case on its


merits when it has jurisdiction over the same may be a ground for reversal on appeal. Also, its duty to exercise its jurisdiction may be enforced by way of a mandamus proceeding.

“The general principle that a court which has jurisdiction over a case is bound to exercise that jurisdiction is not without qualification. In certain situations, a court having jurisdiction over a case may in its discretion decline to exercise it as where the doctrine of forum non conveniens is applicable, the controversy between the parties is concerned only with a trifle, or an abuse of legal process is inherent in the case” (20 Am Jur 2d §93,1965 Ed.; citations by Am Jur omitted).

Effect of lack of jurisdiction “The general rule is that proceedings conducted or decisions

made by a court are legally void where there is an absence of jurisdiction over the subject matter. This is true even where the court in good faith believes that the subject matter is within its jurisdiction x x x.

x x x a court devoid of jurisdiction over the case cannot make a decision in favor of either party. It can only dismiss the case for want of jurisdiction. However, a court may set aside orders it had improperly made before the want of jurisdiction is discovered and it is said that a judgment by a court without jurisdiction over the subject matter may be set aside and vacated at any time by the court that rendered it.

A decision rendered by a court devoid of jurisdiction may be the subject of a collateral attack, if that jurisdictional defect appears on the face of the record. And where lack of jurisdiction over the subject matter appears on the face of the record, an appellate court may, on its own initiative, dismiss the action x x x” (Am Jur 2d, § 97, 1965 Ed.; citations by Am Jur omitted).

Aspects of jurisdiction In discussing the concept of jurisdiction, several aspects of

jurisdiction need to be considered, namely:


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(a) jurisdiction over the subject matter; (b) jurisdiction over the parties; (c) jurisdiction over the issues of the case; and (d) jurisdiction over the res or thing involved in the litigation.

B. Jurisdiction Over The Subject Matter

Meaning of jurisdiction over the subject matter 1. Jurisdiction over the subject matter is referred to as the

power of a particular court to hear the type of case that is then before it. The term also refers to the jurisdiction of the court over the class of cases to which a particular case belongs (Black’s, 5th Edition, 767; citations omitted).

It is the power or authority to hear and determine cases of the general class to which the proceeding in question belongs (Reyes v. Diaz, 73 Phil. 484, 486). Following this definition, ‘real’ actions, ‘personal’ actions or actions “incapable of pecuniary estimation” are to be considered as subject matters.

2. The term, “subject matter” also refers to the item with respect to which the controversy has arisen, or concerning which the wrong has been done, and it is ordinarily the right, the thing, or the contract under dispute (De la Rama v. Mendiola, 401 SCRA 704, 711). Under this extended definition, the matters giving rise to ‘unlawful detainer,’ or ‘forcible entry,’ are subject matters. So are those giving rise to accion publiciana, accion reivindicatoria, partition of property, foreclosure of mortgage, expropriation, habeas corpus, and action for damages, among others.

3. When a complaint is filed in court, the basic questions that ipso facto are to be immediately resolved by the court on its own are: (a) What is the subject matter of the complaint filed before the court? (b) Does the court have jurisdiction over the said subject matter? Answering these questions inevitably requires looking into the applicable laws conferring jurisdiction.


Jurisdiction versus the exercise of jurisdiction 1. Jurisdiction is the power or authority of the court

(Arranza v. B.F. Homes, Inc., 333 SCRA 799,812). The exercise of this power or authority is called the exercise of jurisdiction.

2. Jurisdiction is not the same as the exercise of jurisdiction. As distinguished from the exercise of jurisdiction, jurisdiction is the authority to decide a case, and not the decision rendered therein. Where there is jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is but an exercise of the jurisdiction. The errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subjects of an appeal (Republic of the Philippines v. “G”Holdings, Inc., 475 SCRA 608, 619 citing Tolentino v. Leviste, 443 SCRA 274).

Error of jurisdiction versus error of judgment (Bar 1989) 1. An error of jurisdiction is one where the act complained of

was issued by the court without or in excess of jurisdiction (Cabrera v. Lapid, 510 SCRA 55, 66). Errors of jurisdiction occur when the court exercises a jurisdiction not conferred upon it by law. It may also occur when the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction (GSIS v. Oliza, 304 SCRA 421, 426).

2. In the simplest terms, an error of judgment presupposes that the court is vested with jurisdiction over the subject matter of the action but in the process of exercising that jurisdiction it committed mistakes in the appreciation of the facts and the evidence leading to an erroneous judgment.

Errors of judgment include errors of procedure or mistakes in the court’s findings (Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 334 SCRA 305, 316).

3. urisprudence considers an error of judgment as one which the court may commit in the exercise of its jurisdiction. As long as the court acts within its jurisdiction, any alleged


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errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment (Cabrera v. Lapid, 510 SCRA 55, 66; Heirs of Maura So v. Obliosca, 542 SCRA 406, 417).

A case of a more recent vintage holds: “When a court, tribunal, or officer has jurisdiction over the person and the subject matter of the dispute, the decision on all other questions arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of said jurisdiction are merely errors of judgment (Catindig v. Vda. De Menenses, 641 SCRA 350, 362, February 2, 2011).

4. While an erroneous judgment is not a void judgment, a judgment tainted with an error of jurisdiction either because of a toted absence of jurisdiction to take cognizance of an action or because of a grave abuse of discretion, is a nullity.

Where a court has jurisdiction, an erroneous decision cannot be deemed void (20 Am Jur 2d §90,1965). It has been ruled in a very early case, that if the court has jurisdiction, it is altogether immaterial how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be considered a nullity, and cannot therefore, be collaterally impeached. Such a judgment is binding on the parties unless it is reversed or annulled in a direct proceeding (Herrera v. Barretto, 25 Phil. 245,256 citing Miller v. Rowan, 25 III., 344).

In contrast, if there is a total want of jurisdiction in a court, its proceedings are an absolute nullity, confer no right and afford no protection but will be pronounced void when collaterally attacked (Herrera v. Barretto, 25 Phil. 245, 256 citing Miller v. Rowan, 25 III., 344).

In the same vein, it was likewise ruled that any decision rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal; the only exception is when the party raising the issue is barred by estoppel (Suntay v. Gocolay, 470 SCRA 627, 638; Bank of the Philippine Islands v. ALS Management & Development Corporation, 427 SCRA 564, 575).


5. A difference between errors of jurisdiction and errors of judgment also lies in the manner by which such errors may be corrected.

It is a settled rule that errors of judgment are correctible by appeal (Cabrera v. Lapid, 510 SCRA 55, 66) while errors of jurisdiction are correctible only by the extraordinary writ of certiorari (GSIS v. Oliza, 304 SCRA 421, 426; Cabrera v. Lapid, 510 SCRA 55, 66).

It was thus, declared that assuming that the order of the court was erroneous, such, error would merely be deemed as an error of judgment that cannot be remedied by certiorari. As long as the public respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. All errors committed in the exercise of such jurisdiction are merely errors of judgment (Lim v. Vianzon, 497 SCRA 482).

Lack of jurisdiction and excess of jurisdiction 1. There is lack of jurisdiction when the court or tribunal is

not vested by law with authority or power to take cognizance of a case. On the other hand, excess of jurisdiction presupposes the existence of an authority for the court to assume jurisdiction over a case but in the process of the exercise of that authority, it acts beyond the power conferred upon it.

2. One case clearly sums up the distinction by declaring that a court or tribunal acts without jurisdiction if it does not have the legal power to determine the case; where the respondent, being clothed with the power to determine the case, oversteps its authority as determined by law, it is performing a function in excess of its jurisdiction (Vette Industrial Sales Company, Inc. v. Cheng, 509 SCRA 532, 543).

Jurisdiction and cause of action (Bar 1988) 1. Jurisdiction is the power or the authority of a court

(Cuenca v. PCGG, 535 SCRA 102, 114). It is the authority


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to hear and determine a cause — the right to act in a case (Arranza v. B.F. Homes, Inv., 333 SCRA 799, 812).

2. A cause of action does not refer to the authority of the court. A cause of action is the act or omission of a person violative of the rights of others. Under Sec. 2, Rule 2 of the Rules of Court, a cause of action “is the act or omission by which a party violates a right of another.”

How jurisdiction over the subject matter is conferred 1. Jurisdiction over the subject matter is conferred by law

which may be either the Constitution or a statute (Guinhawa v. People of the Philippines, 468 SCRA 278, 299; De la Cruz v. Court of Appeals, 510 SCRA 103, 114; City of Dumaguete v. Philippine Ports Authority, G.R. No. 168973, August 24, 2011).

2. It is the law that confers jurisdiction and not the rules. Jurisdiction over the subject matter is conferred by the Constitution or the law and rules of procedure yield to substantive law. Otherwise stated, jurisdiction must exist as a matter of law (Papunan v. DARAB, 396 SCRA 196, 204).

Jurisdiction over the subject matter is a matter of substantive law (BP 129; R.A. 7691) because it is conferred by law (Que v. Court of Appeals, 339 SCRA 505, 510).

3. Only a statute can confer jurisdiction on courts and administrative agencies (BF Homes, Inc. v. Manila Electric Company, 636 SCRA 495, 510, December 6, 2010).

Consequences of the rule that jurisdiction is conferred by law 1. Since jurisdiction over the subject matter is conferred only

by the Constitution or by law, it cannot be (1) granted by the agreement of the parties; (2) acquired, waived, enlarged, or diminished by any act or omission of the parties; or (3) conferred by the acquiescence of the courts (Republic v. Estipular, 336 SCRA 333, 340; De Jesus v. Garcia, 19 SCRA 554, 558; De la Rosa v. Roldan, 501 SCRA 34, 51).


2. Jurisdiction cannot be conferred by the administrative policy of any court (Arranza v. B.F. Homes, Inc., 333 SCRA 799, 812).

3. Jurisdiction cannot be conferred by a court’s unilateral assumption of jurisdiction (Tolentino v. Social Security Commission, 138 SCRA 428, 434).

4. Jurisdiction may not be changed by the mere agreement of the parties (Atlas Developer & Steel Industries, Inc. v. Sarmiento Enterprises, Inc., 184 SCRA 153,155). It cannot be the subject matter of a contract (Luna v. Carandang, 26 SCRA 306, 309).

5. Jurisdiction cannot be conferred by consent or waiver (Cadimas v. Carrion, 567 SCRA 101,108; Bar 1992). It cannot be waived by the parties or cured by their silence, acquiescence or even express consent (Peralta-Labrador v. Bugarin, 468 SCRA 308, 313).

6. It is neither for the court nor the parties to violate or disregard the rule, the matter of jurisdiction being legislative in character (Guiang v. Court of Appeals, 510 SCRA 568, 585; De la Rosa v. Roldan, 501 SCRA 34, 51).

How jurisdiction over the subject matter is determined 1. Jurisdiction over the subject matter of a case “is conferred

by law and determined by the allegations in the complaint which comprise a concise statement of the ultimate facts constituting the plaintiffs cause of action. The nature of an action, as well as which court or body has jurisdiction over it, is determined based on the allegations contained in the complaint of the plaintiff, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. The averments in the complaint and the character of the relief sought are the ones to be consulted. Once vested by the allegations in the complaint, jurisdiction also remains vested irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein” (City of Dumaguete v. Philippine Ports Authority, G.R. No. 168973, August 24,2011).


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2. “Well-settled is the rule that what determines the nature of the action, as well as the court which has jurisdiction over the case, are the allegations in the complaint. For instance, in ejectment cases, the complaint should embody such statement of facts as to bring the party clearly within the class of cases for which the statutes provide a remedy x x x. The complaint must show enough on its face to give the court jurisdiction without resort to parol evidence” (De los Reyes v. Spouses Odones, G.R. No. 178096, March 23, 2011).

3. The cause of action in a complaint is not what the designation of the complaint states, but what the allegations in the body of the complaint define and describe. The designation or caption is not controlling, more than the allegations in the complaint themselves are, for it is not even an indispensable part of the complaint (De la Cruz v. Court of Appeals, 510 SCRA 103,117).

4. The rule also applies in the determination of the jurisdiction of a quasi-judicial office or a governmental agency. Jurisdiction over the subject matter is not affected by the pleas or theories set up by the defendant in an answer or a motion to dismiss (Del Monte Philippines, Inc. Employees Agrarian Reform Beneficiaries Cooperative [DEARBC] v. Sangunay, 641 SCRA 87, 96, January 31, 2011).

5. Since it is a basic rule that jurisdiction over the subject matter is determined by the allegations in the complaint (Gustilo v. Gustilo III, G.R. No. 175497, October 19, 2011), in ascertaining, for instance, whether an action is one for forcible entry falling within the exclusive jurisdiction of the inferior courts, the averments of the complaint and the character of the relief sought are to be examined. Where the complaint reveals that the pertinent allegations for forcible entry were made in the complaint and that no landowner- tenant vinculum juris or juridical tie between the parties was alleged, the relationship between them does not involve an agrarian dispute. Hence, the action is clearly for the recovery of physical or material possession of the subject property only, a question which is within the competence of the MTC (Sps. Villacastin v. Pelaez, 554 SCRA 189,194).


6. It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined by the allegations of the complaint irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. Thus, it was once held that the allegations in respondents’ motion to dismiss on the unsound real estate business practices allegedly committed by petitioner, even if proved to be true, cannot serve to oust the RTC of its jurisdiction over actions for breach of contract and damages which has been conferred to it by law (Cadimas v. Carrion, 567 SCRA 101,116).

The defenses and the evidence do not determine jurisdiction 1. The court’s jurisdiction cannot be made to depend upon

defenses set up in the answer or in a motion to dismiss. This has to be so for otherwise, the ends of justice would be frustrated by making the sufficiency of this kind of action dependent upon the defendant in all cases (Tomas Claudio Memorial College, Inc. v. Court of Appeals, 316 SCRA 502, 508).

“As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or upon the motion to dismiss; for otherwise, the question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The averments therein and the character of the relief sought are the ones to be consulted” (City ofDumaguete v. Philippine Ports Authority, G.R. No. 168973, August 24, 2011; See also for related readings: Cadimas v. Carrion, 567 SCRA 101; Fort Bonifacio Development Corp. v. Domingo, 580 SCRA 397).

2. The settled rule is that jurisdiction is based on the allegations in the initiatory pleading and the defenses in the answer are deemed irrelevant and immaterial in its determination (De la Cruz v. Court of Appeals, 510 SCRA 103, 120).


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3. Because jurisdiction is determined by the allegations of the complaint and is not affected by the pleas or theories set up by the defendant in his motion to dismiss or answer (Javellana v. Presiding Judge, RTC Branch 30, 443, SCRA 497, 506), the Municipal Trial Court does not lose its jurisdiction over an ejectment case by the mere allegation that the defendant asserts ownership over the litigated property (Tecson v. Gutierrez, 452 SCRA 781, 787, Miranda v. Bera, 435 SCRA 532,540). In the same vein, the MTC does not automatically lose its exclusive original jurisdiction over ejectment cases by the mere allegations of a tenancy relationship (Vda. De Victoria v. Court of Appeals, 449 SCRA 319, 334; See Magpili v. De Jesus, 474 SCRA 366, 372).

However, while the Municipal Trial Court does not lose its jurisdiction over an ejectment case by the simple expedient of a party raising as a defense therein the alleged existence of a tenancy relationship between the parties, yet if after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction (Hilado v. Chavez, 438 SCRA 623, 641-642).

4. Since it is a basic rule that jurisdiction over the subject matter is determined by the allegations in the complaint (Gustilo v. Gustilo III, G.R. No. 175497, October 19, 2011), jurisdiction does not depend on the amount ultimately substantiated and awarded by the tried court (Dionisio v. Sison Puerto, 60 SCRA 471, 477).

Thus, where a complaint seeking for the payment of PI million is filed in the Regional Trial Court, but after considering the evidence presented, the court rendered a judgment for only P300,000, an amount within the jurisdiction of the Municipal Trial Court if originally filed, the Regional Trial Court did not lose jurisdiction over the action. It therefore, has the authority to render a judgment for P300,000.

It is submitted however, that the above rule does not apply in the reverse. Where a complaint for the recovery of a loan ofP300,000 is filed in the Municipal Trial Court, but after consideration of the evidence, it is shown that the amount


recoverable is PI million, an amount within the jurisdiction of the Regional Trial Court if originally filed, the Municipal Trial Court cannot render judgment for PI million for lack of jurisdiction.

Exception to the rule that jurisdiction is determined by the allegations of the complaint

1. Remember the rule which holds that what determines the nature of the action and the court that has jurisdiction over the case are the allegations in the complaint. Hence, in determining whether or not it has jurisdiction over the complaint before it, the court, as a rule, need not look beyond the allegations of the complaint. The nature of the cause of action and consequently the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or pleadings filed by the defendant. This is the general rule which however, has not been applied with rigidity in ejectment cases in which the defendant averred the defense of the existence of a tenancy relationship between the parties.

2. In Ignacio v. CFI ofBulacan, 42 SCRA 89, 95, it was held “that while the allegations in the complaint make out a case for forcible entry, where tenancy is averred by way of defense and is proved to be the real issue, the case should be dismissed for lack of jurisdiction as the case should properly be filed with the then Court of Agrarian Relations (now DARAB) (De la Cruz v. Court of Appeals, 510 SCRA 103,116).

In Ignacio and other ejectment cases (Salandanan v. Tizon, 62 SCRA 388; Concepcion v. CFI ofBulacan, 119 SCRA 222), where tenancy was the defense, the court went beyond the allegations of the complaint in determining jurisdiction in resolving a motion to dismiss based on lack of jurisdiction over the subject matter and required the presentation of evidence to prove or disprove the defense of tenancy. After finding the real issue to be tenancy, the cases were dismissed for lack of jurisdiction.

3. It must be borne in mind however, that the Municipal Trial Court does not automatically lose its jurisdiction over


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ejectment cases by the mere allegation of the defense of tenancy relationship between the parties (Onquit v. Binamira-Parcia, 297 SCRA 354, 362; Vda. De Victoria v. Court of Appeals, 449 SCRA 319, 334). There must first be a reception of evidence and, if after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction (Hilado v. Chavez, 438 SCRA 623, 641-642). The rule still is that jurisdiction of the court is determined by the allegations of the complaint.

4. In one later case, the plaintiff entered into an agreement with the defendant designating him as administrator of a lot with a monthly salary of P150. The defendant allegedly did not comply with the terms of the agreement when he failed to till the vacant areas as agreed. This compelled the plaintiff to terminate his services and eject him from the lot. When the defendant refused to vacate the property,, the plaintiff filed a complaint for unlawful detainer against him in the Municipal Circuit Trial Court.

In his answer, the defendant alleged the existence of a tenancy relationship between him and plaintiff. Thus, he claimed that the case was an agrarian matter over which the MCTC had no jurisdiction.

The Court found that the plaintiff alleged the following: (1) That he possessed the subject lot; (2) That he instituted the defendant as administrator thereof; (3) That the defendant failed to administer the subject lot by

not having the vacant areas thereof planted; (4) That for the defendant’s failure to administer the subject

lot, his services as administrator was terminated; (5) That he advised defendant through registered mail to

leave or vacate the subject lot; and (6) That the defendant refused to vacate the subject lot

without justification.


The Court ruled that from its material allegations, the complaint concerned the unlawful detainer by the defendant of the subject lot, a matter which is properly within the jurisdiction of the regular courts.

The allegation of tenancy in the defendant’s answer did not automatically deprive the MCTC of its jurisdiction because the jurisdiction of the court over the nature of the action and the subject matter thereof cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss. Otherwise, the Court ruled, the question of jurisdiction would depend almost entirely on the defendant. Accordingly, the MCTC does not lose its jurisdiction over an ejectment case by the simple expedient of a party raising as defense therein the alleged existence of a tenancy relationship between the parties. It is however, the duty of the court to receive evidence to determine the allegations of tenancy. If after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction.

The Court further stressed that a tenancy relationship cannot be presumed. There must be evidence to prove the tenancy relations such that all its indispensable elements must be established, to wit: (1) the parties are the landowner and the tenant; (2) the subject is agricultural land; (3) there is consent by the landowner; (4) the purpose is agricultural production; (5) there is personal cultivation; and (6) there is sharing of the harvests. All these requisites are necessary to create tenancy relationship, and the absence of one or more requisites will not make the alleged tenant a de facto tenant. All these elements must concur. It is not enough that they are alleged (Salmorin v. Zaldivar, 559 SCRA 564, 559).

Doctrine of primary jurisdiction (primary administrative jurisdiction)

1. Under the doctrine of primary jurisdiction, courts cannot and will not resolve a controversy involving a question within the jurisdiction of an administrative tribunal, especially when the question demands the sound exercise of admi


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nistrative discretion requiring special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. The court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction of which is initially lodged with the administrative body of special competence (BF Homes, Inc. v. Manila Electric Company, 636 SCRA 495, 515, December 6, 2010).

In other words, if a case is such that its determination requires the expertise, specialized training, and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the court is had even if the matter may well be within the latter’s proper jurisdiction (Nestle Philippines, Inc. v. Uniwide Sales, Inc., 634 SCRA 232, 240, October 20, 2010).

2. The objective of the doctrine of primary jurisdiction is to guide the court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court (Nestle Philippines, Inc. v. Uniwide Sales, Inc., 634 SCRA 232, 240, October 20, 2010).

In Nestle, the Court declared: “It is not for th[e] Court to intrude, at this stage of the rehabilitation proceedings, into the primary administrative jurisdiction of the SEC on a matter requiring its technical expertise. Pending a decision of the SEC on SEC En Banc Case No. 12-09-183 and SEC En Banc Case No. 01-10-193, which both seek to resolve the issue of whether the rehabilitation proceedings in this case should be terminated, [th]e [Court] [is] constrained to dismiss th[e] petition for prematurity.”

3. Examples: (a) The Supreme Court recognized that the MWSS was in the best position to evaluate and decide which bid for a waterworks project was compatible with its development plan (Concerned Officials of the MWSS v. Vasquez, 240 SCRA 502); (b) The Civil Service Commission is better equipped in handling cases involving the employment status of employees as it is within its field of expertise


(Paloma v. Mora, 470 SCRA 711); (c) The court upheld the primary jurisdiction of the Department of Agrarian Reform Adjudicatory Board (DARAB) in an agrarian dispute over the payment of back rentals under a leasehold contract (Machete v. Court of Appeals, 250 SCRA 176). The Department of Agrarian Reform (DAR) is vested with primary jurisdiction to determine and adjudicate agrarian reform matters, with exclusive original jurisdiction over all matters involving the implementation of agrarian reform except those falling under the exclusive jurisdiction of the Department of Agriculture and the Department of Environment and Natural Resources (Cubero v. Laguna West Multi-Purpose Cooperatives, Inc., 509 SCRA 410).

It is settled that findings of fact of quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only respect, but also finality, especially when affirmed by the Court of Appeals (Shinryo [Philippines] Company, Inc. v. RRN Incorporated, 634 SCRA 123, 130, October 20, 2010).

4. The doctrine of primary jurisdiction will not apply where the matter involved is a purely legal question which will be ultimately resolved by a court of justice (Phil. Phar- mawealth, Inc. v. Pfizer, Inc., 635 SCRA 140, 154, November 17,2010).

Doctrine of adherence of jurisdiction (continuity of jurisdiction) 1. The doctrine means that once jurisdiction has attached, it

cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case (Bantua v. Mercader, 350 SCRA 86, 96; Aruego, Jr. v. Court of Appeals, 254 SCRA 711, 719-720; San Miguel Corporation v. Sandiganbayan, 340 SCRA 289, 321).

Otherwise stated, once jurisdiction is vested, the same is retained up to end of the litigation (De la Rosa v. Roldan, 501


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SCRA 34, 51; Bernarte v. Court of Appeals, 263 SCRA 323, 339). 2. Because of the doctrine, if in an action for ejectment, the

defendant voluntarily surrenders the premises subject of the action to the plaintiff, the surrender of the property does not divest the court of jurisdiction (Pamintuan v. Tiglao, 53 Phil. 1, 4).

Also, if the court has jurisdiction to act on a motion at the time it was filed, that jurisdiction to resolve the motion continues until the matter is resolved and is not lost by the subsequent filing of a notice of appeal (Asmala v. COMELEC, 289 SCRA 746, 752).

3. It was ruled that the jurisdiction that the court had at the time of the filing of the complaint is not lost by the mere fact that the respondent judge ceased to be in office during the pendency of the case (Victory Liner v. Belosillo, 425 SCRA 79, 89-86).

4. In another case, it was held that the trial court did not lose jurisdiction over the case involving a public official by the mere fact that said official ceased to be in office during the pendency of the case (Flores v. Sumaljag, 290 SCRA 568, 579-580). Likewise, the fact that the complainant resigned after the filing of the administrative complaint did not affect the case because jurisdiction had already been acquired over the case upon the filing of the complaint. Jurisdiction, once acquired, is not lost by the resignation of the complaining party; it continues until the case is terminated (Basilio v. Dinio, 634 SCRA 516, 523, November 15, 2010).

5. Even the finality of the judgment does not totally deprive the court of jurisdiction over the case. What the court loses is the power to amend, modify, or alter the judgment. Even after the judgment has become final, the court retains jurisdiction to enforce and execute it (Echegaray v. Secretary of Justice, 301 SCRA 96, 106; Republic v. Atlas Farms, 345 SCRA 296, 300).


6. The doctrine of adherence to jurisdiction also applies to criminal cases. In People v. Cawaling, 293 SCRA 267, 288, the Court had the occasion to declare:

“The jurisdiction of a court to try a criminal case is determined by the law in force at the time of the institution of the action. Once the court acquires jurisdiction, it may not be ousted from the case by any subsequent events, such as a new legislation placing such proceedings under the jurisdiction of another tribunal. The only recognized exceptions to the rule, which find no application in the case at bar, arise when: (1) there is an express provision in the statute, or (2) the statute is clearly intended to apply to actions pending before its enactment.”

Law which governs jurisdiction Jurisdiction being a matter of substantive law, the established

general rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court (Cang v. Court of Appeals, 296 SCRA 128, 141; Asian Center for Career and Employment System and Services v. NLRC, 297 SCRA 727, 731; Baritua v. Mercader, 350 SCRA 86, 96).

Objections to jurisdiction over the subject matter 1. The court may on its own initiative object to an erroneous

jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction in any proceeding (Fabian v. Desierto, 295 SCRA 470, 483).

Under the Rules, TWJhen it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, . . . the court shall dismiss the same” (Sec. 1, Rule 9, Rules of Court).

2. The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer because lack of jurisdiction over the subject matter is a ground for a motion to dismiss (Sec. l[b], Rule 16, Rules of Court).

CHAPTER II 81 JURISDICTION AND VENUE

If no motion to dismiss is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer (Sec. 6, Rule 16, Rules of Court).

3. Thus, the prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal (Calimlim v. Ramirez, 118 SCRA 399, 406; Pangilinan v. Court of Appeals, 321 SCRA 51, 59; Francel Realty Corporation v. Sycip, 469 SCRA 424, 431). The reason is that jurisdiction is conferred by law, and lack of it affects the very authority of the court to take cognizance of and to render judgment on the action (Asiatrust Development Bank v. First Aikka Development, Inc. and Univac Development, Inc., G.R. No. 179558, June 11, 2011).

The general rule is that the objection for want of jurisdiction of the controversy or the subject matter may be made at any time and at any stage of the proceedings. If the question is not raised in the lower court, it may be raised for the first time on appeal (35A C.J.S. §466,1960).

4. In one case, it appeared that the petitioner already questioned the court’s jurisdiction at an early stage of the case. On appeal to the CA, it again raised the same issue, but it failed to obtain a favorable decision. It cannot, therefore, be said that petitioner slept on its rights. It is not estopped from raising the jurisdictional issue even at this stage. In any event, even if petitioner had not raised the issue of jurisdiction, the reviewing court would still not be precluded from ruling on the matter of jurisdiction (Asiatrust Development Bank v. First Aikka Development, Inc. and Univac Development, Inc., G.R. No. 179558, June 11, 2011).

5. The issue of jurisdiction is so basic that it may be raised at any stage of the proceedings, even on appeal. In fact, courts may take cognizance of the issue even if not raised by the parties themselves. There is thus, no reason to preclude the Court of Appeals, for example, from ruling on this issue even if the same has not yet been resolved by the trial court below (Asia International Auctioneers, Inc. v. Parayno, Jr., 540 SCRA 536, 546-547).


Lack of jurisdiction is one of those excepted grounds where the court may dismiss a claim or a case at any time when it appears from the pleadings or the evidence on record that any of those ground exists, even if they were not raised in the answer or in a motion to dismiss. That the issue of lack of jurisdiction was raised only by the defendants in their memorandum filed before the trial court did not render them in estoppel (Geonzon Vda. De Barrera v. Heirs of Vicente Legaspi, 565 SCRA 192,198).

6. When the court dismisses the complaint for lack of jurisdiction over the subject matter, should it refer or forward the case to another court with the proper jurisdiction? It is submitted that the court should not do so. Its only authority is to dismiss the complaint and not to make any other order (Bar 2004).

Omnibus motion rule 1. Under the omnibus motion rule, a motion attacking a

pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived (Sec. 8, Rule 15, Rules of Court). A motion to dismiss which seeks the dismissal of a claim is undoubtedly an omnibus motion and is thus, covered by the rule enunciated in Sec. 8 of Ride 15.

Thus, for instance, if a motion to dismiss is filed by the defendant on certain grounds but failed to include therein an available defense like improper venue, said ground can no longer be invoked later as an affirmative defense in the answer.

2. The omnibus motion rule however, is, by the terms of Sec. 8 of Rule 15, “[SJubject to the provisions of Section 1 of Rule 9.”

The pertinent provision declares:

“x x x However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action


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pending between the same parties for the same cause, or that the action is barred by a prior judgment or by the statute of limitations, the court shall dismiss the claim.”

Thus, there are defenses mentioned in Sec. 1 of Rule 9, not considered waived even if not raised in a motion to dismiss like lack of jurisdiction over the subject matter. Hence, even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer, still raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule.

Effect of estoppel on objections to jurisdiction 1. While it is true that jurisdiction over the subject matter

may be raised at any stage of the proceedings since it is conferred by law, it is nevertheless settled that a party may be barred from raising it on the ground of estoppel (La’o v. Republic, 479 SCRA 439, 446).

The fact pattern common among those cases wherein the Court invoked estoppel to prevent a party from questioning jurisdiction is a party’s active participation in all stages of a case, including invoking the authority of the court in seeking affirmative relief and questioning the court’s jurisdiction only after receiving a ruling or decision adverse to his case for the purpose of annulling everything done in the trial in which he has actively participated.

As clearly pointed out in La’o: “A party who has invoked the jurisdiction of the court over a particular matter to secure affirmative relief cannot be permitted to afterwards deny that same jurisdiction to escape liability.”

2. The doctrine of estoppel by laches in relation to objections to jurisdiction first appeared in the landmark case of Tijam v. Sibonghanoy (23 SCRA 29, 35). Here, the Supreme Court barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings. The doctrine


of estoppel by laches said the Supreme Court in Tijam is “based upon grounds of public policy x x x and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted.”

3. The Supreme Court frowns upon the undesirable practice of submitting one’s case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction if it is not (Bank of the Philippine Islands v. ALS Management & Development Corporation, 427 SCRA 564, 575).

The rule also applies to administrative proceedings. The active participation of an individual before the administrative proceedings and the belated challenge to the jurisdiction of the said body bars him from assailing such acts under the principle of estoppel (Office of the Ombudsman v. Delijero, Jr., 634 SCRA 135, 148, October 20, 2010).

4. The rule is that the active participation of the party against whom the action was brought, coupled with his failure to object to the jurisdiction of the court or administrative body where the action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by the resolution of the case and will bar said party from later on impugning the court or body’s jurisdiction (Megan Sugar Corporation v. RTC of Iloilo, Branch 68, G.R. No. 170352, June 1, 2011).

‘Tijam’ ruling, an exception rather than the rule 1. The ruling in Tijam on the matter of jurisdiction is

however, the exception rather than the rule as subsequently confirmed in Calimlim v. Ramirez (118 SCRA 399, 406) and Pangilinan v. Court of Appeals (321 SCRA 51, 59).

The landmark doctrine enunciated in Tijam v. Sibongha- noy on the matter of jurisdiction by estoppel is the exception rather than the rule. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which the factual milieu is analogous to that in the cited case. In such controversies, laches should have been clearly present; that is, lack of jurisdiction must have been raised so belatedly as


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to warrant the presumption that the party entitled to assert it had abandoned or declined to assert it (Regalado v. Go, 514 SCRA 616, 635).

The contention that the defense of lack of jurisdiction may be waived by estoppel through active participation in the trial is not the general rule but an exception, best characterized by the circumstances in Tijam v. Sibonghanoy (Mangali- ag v. Pastoral, 474 SCRA 153,162).

2. In Tijam, the defense of lack of jurisdiction was raised for the first time in a motion to dismiss filed by the Surety almost fifteen (15) years after the questioned ruling had been rendered. At several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its case for final adjudication on the merits. It was only when the adverse decision was rendered by the Court of Appeals that it finally woke up to raise the question of jurisdiction (See for related readings, Regalado v. Go, G.R. No. 167988, February 6, 2007).

Laches should have been raised so belatedly so as to give rise to the presumption that the party entitled to assert it had abandoned or declined to assert it. Tijam applies only to exceptional circumstances. The general rule remains: a court’s lack of jurisdiction may be raised at any stage of the proceedings even on appeal (Franeel Realty Corporation v. Sycip, 469 SCRA 424; Regalado v. Go, 514 SCRA 616, 635).

3. Where the factual settings attendant in Tijam v. Sibonghanoy are not present, the application of estoppel by laches would not be justified (Vda. De Herrera v. Bernardo, G.R. No. 170251, June 1, 2011).

C. Jurisdiction Over The Parties

Meaning of jurisdiction over the person; jurisdiction in personam 1. Jurisdiction over the person is the legal power of the court

to render a personal judgment against a party to an


action or proceeding (Black's, 5th Edition, 767 citing Imperial v. Hardy, La, 302 So.2d 5, 7).

2. Jurisdiction in personam is the power which a court has over the defendant’s person and which is required before a court can enter a personal or an in personam judgment (Black’s, 5th Edition, 766 citing Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565). A decision in personam imposes a responsibility or liability upon a person directly and therefore, binds him personally (20 Am Jur 2d §119,1965). How jurisdiction over the persons of the parties is acquired (Bar 2009)

1. The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant.

2. Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court (Davao Light & Power Co., Inc. v. Court of Appeals, 204 SCRA 343; Bar 1981; Bar 1994; Bar 2009).

3. Jurisdiction over the person of the defendant in civil cases is acquired either by his voluntary appearance in court and his submission to its authority or by service of summons (Ang Ping v. Court of Appeals, 310 SCRA 343, 349; Davao Light & Power Co., Inc. v. Court of Appeals, 204 SCRA 343, 347; Sec. 20, Rule 14, Rules of Court). Voluntary appearance of the defendant

1. The court may acquire jurisdiction over the person of the defendant without service of summons or despite a defective service of summons.

Jurisdiction is acquired when the defendant voluntarily appears in the action. “The defendanfs voluntary appearance in the action shall be equivalent to service of summons” (Sec. 20, Rule 14, Rules of Court).

2. To constitute voluntary appearance, it must be the kind that amounts to a voluntary submission to the jurisdic


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tion of the court. Submission to the court’s jurisdiction takes the form of an appearance that seeks affirmative relief except when the relief sought is for the purpose of objecting to the jurisdiction of the court over the person of the defendant.

3. Examples: (a) when the defendant files the corresponding pleading thereon; (b) when the defendant files a motion for reconsideration of the judgment by default; (c) when the defendant files a petition to set aside the judgment of default; or (d) when the parties jointly submit a compromise agreement for approval of the court (Navale v. Court of Appeals, 253 SCRA 705, 708-709).

4. As a rule, an appearance in whatever form without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court (Carballo v. Encamacion, 92 Phil. 974, 976). Hence, the filing of an answer per se should not be treated automatically as a voluntary appearance. When the appearance is precisely to object to the jurisdiction of the court over his person, it is not considered an appearance in court (French Oil Machinery Company v. Court of Appeals, 295 SCRA 462, 469) and should not be construed as a submission by the defendant of his person to the jurisdiction of the court.

When jurisdiction over the person of the defendant is required 1. Jurisprudence suggests that jurisdiction over the person

of the defendant is required only in an action in personam. Jurisdiction over the person of the defendant is not a prerequisite in an action in rem and quasi in rem.

2. An action in personam is an action against a person on the basis of his personal liability. An action in rem is an action against the thing itself instead of against the person. An action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 552).

Petitions directed against the “thing” itself or the res which concerns the status of a person like a petition for adop


tion, annulment of marriage, or correction of entries in the birth certificate, are actions in rem (Alba v. Court of Appeals, 465 SCRA 495, 505-506).

Forfeiture proceedings are also considered actions in rem. The Court declared that the rule is settled that forfeiture proceedings Eire actions in rem. These proceedings do not terminate in the imposition of a penalty but merely in the forfeiture of the properties either acquired illegally or related to unlawful activities in favor of the State. As an action in rem, it is a proceeding against the thing itself instead of against the person. In actions in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to conferring jurisdiction on the court, provided that the court acquires jurisdiction over the res. Nonetheless, summons must be served upon the defendant in order to satisfy the requirements of due process. For this purpose, service may be made by publication as such mode of service is allowed in actions in rem and quasi in rem (Republic v. Glasgow Credit and Collection Services, Inc., 542 SCRA 95,112).

3. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 552).

On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. However, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 554; See for related readings: Gomez v. Court of Appeals, 425 SCRA 98; PCI Bank v. Alejandro, 533 SCRA 738; Biaco v. Philippine Countryside Rural Bank, 515 SCRA 106).

4. Another case similarly holds:

“x x x In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a pre


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requisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. The service of summons or notice to the defendant is not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements” (Alba v. Court of Appeals, 465 SCRA 495, 505-506).

Objections to jurisdiction over the person of the defendant 1. An objection to the jurisdiction over the person of the

defendant may be raised as a ground for a motion to dismiss (Sec. l[a], Rule 16, Rules of Court). If no motion to dismiss has been filed, the objection may be pleaded as an affirmative defense in the answer (Sec. 6, Rule 16, Rules of Court; Bar 1990).

2. If the objection is not raised either in a motion to dismiss or in the answer, the objection to the jurisdiction over the person of the defendant is deemed waived by virtue of the provisions of Sec. 1, Rule 9 of the Rules of Court which clearly provide:

“Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.”

3. Also worthy to remember is the rule that if a motion to dismiss has been filed, the defense of lack of jurisdiction over the person of the defendant must be pleaded in the same motion where such ground is available at the time the motion is filed, otherwise it is deemed waived pursuant to the omnibus motion rule.

The omnibus motion rule embodied in Sec. 8, Rule 15 of the Rules of Court, is explicit and unequivocal:

“Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceed


ing shall include all objections then available, and all objections not so included shall be deemed waived”(italics supplied).

4. The omnibus motion rule, in relation to Sec. 1 of Rule 9, enumerates certain defenses which are not deemed waived even if not raised in the motion to dismiss. Also, under Sec. 1 of Rule 9 when any of these grounds appears from the pleadings or in the evidence on record, the court is authorized to dismiss the claim.

These defenses are:

(a) that the court has no jurisdiction over the subject matter; (b) that there is another action pending between the same

parties for the same cause (litis pendencia); (c) that the action is barred by a prior judgment (res

judicata); or (d) that the action is barred by the statute of limitations

(prescription). (Bar 2011). The defense of lack of jurisdiction over the person of the

defendant is not one of those defenses which are not deemed waived under Sec. 1 of Rule 9. Such defense must be invoked when a motion to dismiss is filed to prevent a waiver of the defense.

Effect of pleading additional defenses aside from lack of jurisdiction over the person of the defendant; prior rule re-examined

1. Under the former procedure, if the defendant raises the objection of lack of jurisdiction over his person in a motion to dismiss, the motion must rely only on that particular ground. If the defendant appears in court, objects to its jurisdiction over his person and at the same time alleges other grounds, the appearance would be deemed a general appearance which was in effect a voluntary submission to the jurisdiction of the court (Republic v. Ker & Company, Ltd., 18 SCRA 207, 213- 214).


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In Wang Laboratories v. Mendoza, 156 SCRA 44, 54, for instance, the Court has ruled that “even though the defendant objects to the jurisdiction of the court, if at the same time he alleges any non-jurisdictional ground for dismissing the action, the court acquires jurisdiction over him.”

2. The above rule was reexamined in La Naval Drug Corporation v. Court of Appeals, 236 SCRA 78. This significant case appropriately held that if a plaintiff may assert two or more causes of actions, a defendant should also be allowed under the Rules of Court to put up his own defenses alternatively or hypothetically. The Court stressed that it should not be the invocation of available additional defenses that should be construed as a waiver of the defense of lack of jurisdiction over the person of the defendant, but the failure to raise the defense.

3. The pronouncements in La Naval are now embodied in Sec. 20 of Rule 14 which provides:

“x x x The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.”

4. As the rule now stands, the rule allows the raising of defenses in addition to lack of jurisdiction over the person of the defendant without creating an inference of a voluntary submission to the jurisdiction of the court (Sec. 20, Rule 14, Rules of Court).

D. Jurisdiction Over The Issues Meaning of jurisdiction over the issue

1. Jurisdiction over the issue is the power of the court to try and decide issues raised in the pleadings of the parties (Reyes v. Diaz, 73 Phil. 484, 487).

2. An issue is a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision


(Black’s, 5th Ed., 745 citing Muller v. Muller, 235 Cal. App. 2d, 341, 45 Cal. Rptr. 182, 184). Where there is no disputed point, there is no issue.

How jurisdiction over the issue is conferred and determined 1. Generally, jurisdiction over the issues is conferred and

determined by the pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or of law (61A Am Jur 2d, Pleadings, § 1). Hence, in order to determine whether or not a court has jurisdiction over the issue or issues of the case, one must examine the pleadings. Whether or not a court has jurisdiction over a specific issue is a question that requires nothing but an examination of the pleadings (Reyes v. Diaz, supra).

With respect to an issue raised by the pleadings, an issue arises because a material allegation of a claiming party is specifically denied by the defending party. The denial to be specific must be one which conforms to any of the denials prescribed in Sec. 10 of Rule 8. A denial made not in accordance with the said rule is to be construed as an admission, a circumstance which does not give rise to an issue.

Thus, where the defendant admits all the material allegations of fact of the claiming party, there is no controverted issue between the parties.

Under Rule 34 of the Rules of Court, where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, a judgment on the pleadings may be rendered by the court upon a motion properly filed.

2. Jurisdiction over the issues may also be determined and conferred by stipulation of the parties as when in the pretrial, the parties enter into stipulations of facts and documents or enter into an agreement simplifying the issues of the case (Sec. 2, Rule 18, Rules of Court).

3. Jurisdiction over the issues may also be conferred by waiver or failure to object to the presentation of evidence


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on a matter not raised in the pleadings. Here the parties try with their express or implied consent issues not raised by the pleadings. The issues tried shall be treated in all respects as if they had been raised in the pleadings (Sec. 5, Rule 10, Rules of Court).

Jurisdiction over the issue distinguished from jurisdiction over the subject matter

Jurisdiction over the issue “should be distinguished from jurisdiction over the subject matter, the latter being conferred by law and the former, by the pleadings. Jurisdiction over the issue, unlike jurisdiction over the subject matter, may be conferred by consent either of the parties, either express or implied, x x x Although an issue is not duly pleaded, it may be validly tried and decided if no timely objection is made thereto by the parties. This cannot be done when jurisdiction over the subject matter is involved x x x. ” (Reyes v. Diaz, 73 Phil. 484, 487).

Distinction between a question of law and a question of fact (Bar 2004)

1. The issue in a case may be either one of law or one of fact.

2. There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. There is a question of fact when the doubt or difference arises as to the truth or falsehood of the alleged facts (Sps. Santos v. Court of Appeals, 337 SCRA 67, 74).

Thus, where the question disputed by the parties is whether or not the debtor has paid the debt, the issue is one of fact. Where the question is whether or not the manner of payment is of the type which produces the legal effect of extinguishing the obligation, the issue becomes one of law. Also, when under a given set of facts the issue is whether or not the law on double sales applies, there is a question of law.

3. For a question to be one of law, the same must not involve an examination of the probative value of the evidence


presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact (Velayo-Fong v. Spouses Velayo, 510 SCRA 320, 329-330).

4. Where the threshold issue is whether certain paragraphs in an agreement are void for being contrary to law or public policy, certainly, it is obvious that the issue is a question of law (Avon Cosmetics, Inc. v. LUNA, 511 SCRA 376, 388).

When an issue arises even if not raised in the pleadings 1. While it is a rule that an issue arises from the pleadings of

the parties, an issue may arise in the case without it having been raised in the pleadings. This occurs when the parties try an issue with their consent. Under Sec. 5 of Rule 10, when issues not raised in the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings (Estolas v. Acena, 448 SCRA 233, 245). Under Sec. 5 of Rule 10, upon motion of any party, the pleadings may be amended to conform to the evidence but the failure to so amend does not affect the result of the trial of these issues because it is submitted, the pleadings are deemed impliedly amended to embody the issues tried with the consent of the parties.

2. The consent of the parties may be inferred from the failure to interpose an objection to the presentation of evidence on a matter not alleged in the pleadings. Thus, where the issue as determined in the complaint and answer is one of ownership, any evidence showing possession must be objected to, possession not being an issue raised in the pleadings of the


parties. However, if the evidence is not objected to seasonably, the matter of possession will be deemed to have been raised by the parties in their pleadings and the evidence becomes admissible.

3. If the complaint does not allege a claim for salary differential, but no objection was interposed on the evidence presented to prove the claim for salary differential, the Labor Arbiter correctly considered the evidence (Cindy and Lynsy Garment v. NLRC, 284 SCRA 38, 45).

4. If in a complaint for a sum of money filed before the Regional Trial Court, plaintiff did not allege the making of a demand for payment before commencing suit but during the trial, plaintiff duly offered in evidence a letter of demand for the purpose of proving the making of an extrajudicial demand on the defendant, and the letter was admitted in evidence without objection of the defendant, it is as if the matter of demand was raised in the pleadings. The court committed no procedural error in admitting the letter of demand in evidence (Bar 2004).

E. Jurisdiction Over The Res (Property In Litigation)

Meaning of jurisdiction over the res; actions in personam, in rem, and quasi in rem

1. “Res” in civil law is a ‘thing,’ an ‘object.’ It means everything that may form an object of rights in opposition to ‘persona’ which is the subject of rights. It includes an object, subject-matter or status (Black’s, 5th Edition, 1172; Citations omitted).

2. Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action. This type of jurisdiction is necessary when the action is an action in rem or quasi in rem. When the action is one in personam, jurisdiction over the res is not sufficient to authorize the court to render a judgment against the


defendant. In an action in personam, jurisdiction over the person of the defendant is required.

3. Jurisprudence holds that if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not required. What is required is jurisdiction over the res although summons must also be served upon the defendant in order to satisfy the requirements of due process (Gomez v. Court of Appeals, 425 SCRA 98,104).

However, where the action is in personam, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case (Banco do Brasil v. Court of Appeals, 333 SCRA 545, 557; Suggested reading: Romualdez-Licaros v. Licaros, 401 SCRA 762, 770).

4. Actions in personam and actions in rem or quasi in rem differ in that actions in personam are directed against specific persons and seek personal judgments. On the other hand, actions in rem or quasi in rem are directed against the thing or property or status of a person and seek judgments with respect thereto as against the whole world (Romualdez- Licaros v. Licaros, 401 SCRA 762, 770).

How acquired 1. Jurisdiction over the res may be acquired by the court by

placing the property or thing under its custody (cus- todia legis) or constructive seizure. Example: Attachment of property.

It may also be acquired by the court through statutory authority conferring upon it the power to deal with the property or thing within the court’s territorial jurisdiction. Example: Suits involving the status of the parties or suits involving the property in the Philippines of non-resident defendants.

The Court more clearly explains:

Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property under legal process, whereby it is brought into


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the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what [th]e [Court] term[s] potential jurisdiction over the res, is found in the proceeding to register the title of land under [the] system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world (Banco Espafiol-Filipino v. Palanca, 37 Phil. 921, 927-928).

2. A land registration case is a proceeding in rem, and jurisdiction over the res in this case cannot be. acquired unless there is a constructive seizure of the land through publication and service of notice (Republic v. Herbieto, 459 SCRA 183, 196).

Extent of relief when jurisdiction is only over the res 1. Any relief granted in rem or in quasi in rem actions must

be confined to the res, and the court cannot lawfully render a judgment against the defendant (Banco do Brasil v. Court of Appeals, 333 SCRA 545, 558).

2. For instance, if in an action to foreclose a real estate mortgage, where the jurisdiction acquired by the court is only over the res and not over the person of the defendant because the debtor-mortgagor is a non-resident who is also outside of the Philippines, the relief of the creditor extends only to the property foreclosed. If in the foreclosure sale, there arises a deficiency, a deficiency judgment authorized by Sec. 6 of Rule 68 against the debtor-mortgagor would not be feasible. This


is because the collection of the deficiency is a proceeding in personam which requires jurisdiction over the person of the debtor-mortgagor. There being no personal jurisdiction over his person, a deficiency judgment cannot be rendered against him.

F. Jurisdiction of the Supreme Court

1. Exclusive original jurisdiction in petitions for certiorari, prohibition, and mandamus against the:

(a) Court of Appeals (Sec. 17, Judiciary Act of1948); (b) Commission on Elections (Sec. 7, Art. IX, 1987 Cons-

titution of the Philippines);

(c) Commission on Audit (Sec. 7, Art. IX, 1987 Constitution of the Philippines);

(d) Sandiganbayan (P.D. No. 1606 as amended); and (e) Court of Tax Appeals. 2. Concurrent original jurisdiction with the Court of Appeals

in petitions for certiorari, prohibition, and mandamus against the:

(a) Regional Trial Court (Sec. 21[1], B.P. 129); (b) Civil Service Commission (R.A. 7902); (c) Central Board of Assessment Appeals (P.D. 464; B.P. 129;

RA. 7902); (d) National Labor Relations Commission (St. Martin

Funeral Homes v. NLRC, 295 SCRA 494; RA. No. 7902); and

(e) Other quasi-judicial agencies (B.P. 129; RA. 7902; Heirs ofHinog v. Melicor, 455 SCRA 460).

This jurisdiction is subject to the doctrine of hierarchy of courts (Liga ng mga Barangay National v. Atienza, 420 SCRA 562, 572; Lacson Hermanas, Inc. v. Heirs of Ignacio, 462 SCRA 290,294).


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3. Concurrent original jurisdiction with the Court of Appeals and the Regional Trial Court in petitions for certiorari, prohibition, and mandamus against lower courts and bodies, and in petitions for quo warranto and habeas corpus. This jurisdiction is subject to the doctrine of hierarchy of courts (Secs. 9[1], 21[1], B.P. 129; Sec. 5, Art. VIII, 1987 Constitution of the Philippines).

4. Concurrent original jurisdiction with the Regional Trial Court in cases affecting ambassadors, public ministers, and consuls (Sec. 21[2], B.P. 129; Sec. 5, Art. VIII, 1987 Constitution of the Philippines).

5. Appellate jurisdiction by way of petition for review on certiorari (appeal by certiorari under Rule 45) against the: (a) Court of Appeals, (b) Sandiganbayan, (c) Regional Trial Courts on pure questions of law (Sec. 1, Rule 45) and in cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court (Sec. 5, Art. VIII, Constitution of the Philippines) and (d) Court of Tax Appeals in its decisions rendered en bane (Sec. 11, R.A. 9282).

The Supreme Court is not a trier of facts There are important principles worthy of note in relation to the

jurisdiction of the Supreme Court. 1. The Supreme Court is not a trier of facts which means

that passing upon a factual issue is not within the province of the Supreme Court (Romy’s Freight Service v. Castro, 490 SCRA 160,165). The findings of facts of the Court of Appeals, are not generally reviewable by the Supreme Court (Sarmiento v. Yu, 497 SCRA 513, 517). Factual findings of the trial court, particularly when affirmed by the Court of Appeals, are generally binding on the Supreme Court (Tan v. G.V.T. Engineering Services, 498 SCRA 93, 107).

2. There is nothing more settled in this jurisdiction than the rule that the Supreme Court is not a trier of facts,


and that only questions of law may be entertained by the Court in petitions for review on certiorari under Rule 45. Questions of fact are not reviewable. For instance, the question of whether there is sufficient evidence to support a conclusion that there was falsification of public documents is definitely a factual issue which requires a review of the pieces of evidence presented by the parties. This review will not be made by the Court if there is nothing on record before the Court to show that the CA committed grave reversible error in its factual review of the decision (Office of the Ombudsman v. Lazaro- Baldazo, 514 SCRA 141, 144).

3. It is not the function of the Supreme Court to determine the weight of the evidence supporting the assailed decision(J.R. Blanco v. Quasha, 318SCRA373,382). However, factual issues may be delved into and resolved where the findings and conclusions of the trial court or the quasi-judicial bodies are frontally inconsistent with the findings of the Court of Appeals (Office of the Ombudsman v. Tongson, 499 SCRA 567, 584).

Exceptions While it is a settled rule that the Supreme Court, in the

exercise of its power of review is not a trier of facts, jurisprudence has however, recognized several exceptions in which factual issues may be resolved by the Court, namely:

(1) when the findings are grounded entirely on speculation, surmises or conjectures;

(2) when the inference made is manifestly mistaken, absurd, or impossible;

(3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of

facts;

(5) when the findings of facts are conflicting; (6) when in making its findings the CA went beyond the

issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;


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(7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of

specific evidence on which they are based; (9) when the facts set forth in the petition, as well as in the

petitioner’s main and reply briefs, are not disputed by the respondent;

(10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and

(11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion (Cristobal Cruz v. Cristobal, 498 SCRA 37; Heirs of Dicman v. Carino, 490 SCRA 240; Safeguard Security Agency, Inc. v. Tangco, 511 SCRA 67; De los Santos v. Elizalde, 514 SCRA 14; National Power Corporation v. De la Cruz, 514 SCRA 56; Spouses Yu v. Ngo Yet Te, 514 SCRA 423).

Original cases cognizable by the Supreme Court 1. As a rule, the Supreme Court is not a trier of facts and

cases are not filed originally with the Supreme Court. The rule is however, subject to certain exceptions. Under the Rules of Court (Sec. 1, Rule 56), only the following may be filed originally in the Supreme Court:

a. petition for certiorari; b. petition for prohibition;

c. petition for mandamus', d. petition for quo warranto;

e. petition for habeas corpus;

f. disciplinary proceedings against members of the judiciary and attorneys; and

g- cases affecting ambassadors, other public ministers, and consuls.


2. A petition for a writ of amparo may also be filed directly with the Supreme Court (Sec. 3, The Rule on the Writ of Amparo) aside from the other courts mentioned. A petition for a writ of habeas data may also be filed directly with the Supreme Court (Sec. 3, The Rule on the Writ of Habeas Data).

3. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto, and habeas corpus, shall be in accordance with the following:

a. applicable provisions of the Constitution;

b. applicable provisions of laws; and

c. the provisions of Rules 46,48, 51 and 52 (Sec. 2, Rule 56, Rules of Court).

4. Also, all references to the Court of Appeals in the above Rules, shall be understood to likewise refer to the Supreme Court, except those dealing strictly with and specifically intended for appealed cases in the Court of Appeals (Sec. 2, Rule 56, Rules of Court). Hence, the procedure in original cases for certiorari, prohibition, mandamus, quo warranto, and habeas corpus in the Court of Appeals applies also when said cases are filed originally with the Supreme Court. The provisions on preliminary conference in Rule 48, the rule on oral arguments in Rule 49, the provisions on judgment in Rule 51, the rules on motion for consideration in Rule 52, and the provisions of Rule 46 are understood to refer also to the Supreme Court.

5. Rule 52 refers to the applicable rules when there is a motion for reconsideration of a judgment or final order of the Court.

Under Sec. 1 of Rule 52, the motion shall be filed within fifteen (15) days from notice of the judgment or final resolution. Under Sec. 4 of Rule 52, the pendency of a motion for reconsideration that was timely filed by the proper party shall have the effect of staying the execution of the judgment or final resolution sought to be reconsidered, unless the court otherwise directs for good reasons.

Significantly, Sec. 2 of Rule 52 expressly prohibits a second motion for reconsideration by the same party. In the lan


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guage of the Rule, “x x x No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.”

Appeal to the Supreme Court 1. An appeal to the Supreme Court may be taken only by a

petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua, or life imprisonment (Sec. 3, Rule 56, Rules of Court). The mode of appeal to the Supreme Court referred to under Sec. 3 of Rule 56 is an appeal by certiorari under Rule 45.

2. The appeal is made by filing with the Supreme Court a verified petition for review on certiorari and shall raise only questions of law (Sec. 1, Rule 45, Rules of Court). As a rule, questions of fact are not to be raised in an appeal by way of Rule 45. Hence, under Sec. 6 of Rule 56, if an appeal under Rule 45 is taken to the Supreme Court from the Regional Trial Court submitting issues of fact, the appeal may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved, shall be final.

Cases which under the 1987 Constitution must be heard en banc Under the Constitution of the Philippines, the following cases

should be heard by the Supreme Court en banc: (a) All cases involving the constitutionality of a treaty,

international or executive agreement, or law (Sec. 4[2], Art. VIII);

(b) All cases which under the Rules of Court are required to be heard en banc (Sec. 4[2], Art. VIII);

(c) All cases involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations (Sec. 4[2], Art. VIII);

(d) Cases heard by a division when the required number in the division is not obtained (Sec. 4[3], Art. VIII);


(e) Cases involving a modification or reversal of a doctrine or principle of law laid down previously by the Supreme Court in a decision rendered en banc or by a division (Sec. 4[3], Art. VII);

(f) Cases involving the discipline of judges of lower courts (Sec. 11, Art. VIII);

(g) Contests relating to the election, returns, and quali-fications of the President or Vice-president (Sec. 4, Art. VII).

Procedure when the Supreme Court en banc is equally divided Where the opinion of the Supreme Court en banc is equally

divided, or the necessary majority cannot be had, the case shall again be deliberated on. If after such deliberation no decision is reached, the original action commenced in the court shall be dismissed. In appealed cases, the judgment or order appealed from shall stand affirmed. On all incidental matters, the petition or motion shall be denied (Sec. 7, Rule 56, Rules of Court).

G. Jurisdiction of the Court of Appeals

1. Unlike the Supreme Court which could sit en banc depending on the cases to be resolved, the Court of Appeals may sit en banc only for the purpose of exercising administrative, ceremonial, or other non-adjudicatory functions (Sec. 4, B.P. 129, as amended).

2. The Court of Appeals shall exercise jurisdiction over the following cases:

a. Exclusive original jurisdiction in actions for the annulment of the judgments of the Regional Trial Courts (Sec. 9[2], B.P. 129, as amended).

b. Concurrent and original jurisdiction with the Supreme Court to issue writs of certiorari, prohibition,


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and mandamus against the (a) Regional Trial Court, (b) Civil Service Commission, (c) Central Board of Assessment Appeals, (d) Other Quasi-judicial agencies mentioned in Rule 43, and (e) National Labor Relations Commission (St. Martin Funeral Homes v. NLRC, 295 SCRA 494, 509). Following the “doctrine of hierarchy of courts,” the petition for certiorari against the NLRC must first be filed with the Court of Appeals. Concurrent and original jurisdiction with the Supreme Court and the Regional Trial Court to issue writs of certiorari, prohibition, and mandamus against lower courts and bodies and also writs of quo warranto and habeas corpus. (Bar 2011).

Note: Under the law, the original jurisdiction of the Court of Appeals to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes may be exercised whether or not in aid of its appellate jurisdiction (Sec. 9[1], B.P. 129, as amended). Previously, the Court of Appeals could issue these writs only in aid of its appellate jurisdiction. Exclusive appellate jurisdiction by way of ordinary appeal from the Regional Tried Court and the Family Courts (Sec. 9[3], B.P. 129, as amended; Sec. 14, RA.. 8369). Exclusive appellate jurisdiction by way of petition for review from the Regional Trial Court rendered by the RTC in the exercise of its appellate jurisdiction (Sec. 22, B.P. 129, as amended; Rule 42, Rules of Court; Sec. 9, B.P. 129). Exclusive appellate jurisdiction by way of petition for review from the decisions, resolutions orders or awards of the Civil Service Commission, and other bodies mentioned in Rule 43 (Sec. 9[3], B.P. 129).

The decisions of the Office of the Ombudsman in administrative disciplinary cases are appealable


to the Court of Appeals (Enemecio v. Office of the Ombudsman, 419 SCRA 82, 90; Gonzales v. Rosas, 423 SCRA 488, 494).

Note that under R.A. 9282, the judgments and final orders of the Court of Tax Appeals are no longer appealable by way of petition for review to the Court of Appeals. Judgments of the Court of Tax Appeals rendered en banc are appealable to the Supreme Court by way of Rule 45 (Sec. 11, R.A. 9282).

g. Appellate jurisdiction over decisions of Municipal Trial Courts in cadastral or land registration cases pursuant to its delegated jurisdiction (Sec. 34, B.P. 129, as amended by RA.. 7691). This is because decisions of Municipal Trial Courts in these cases are appealable in the same manner as decisions of Regional Trial Courts (Sec. 34, B.P. 129, as amended).

Power to try and conduct hearings like a trial court 1. Even if the Court of Appeals is not basically a trial court,

unlike the Regional Trial Court or the Municipal Trial Court, under the law it has the power to try cases and conduct hearings, receive evidence, and perform any and all acts necessary to resolve factual issues in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings (Sec. 9[3], B.P. 129, as amended by RA. 7902).

The Court of Appeals may pass upon the evidence to factual issues as when a petition for certiorari is filed before it (Alcazaren v. Univet Agricultural Products, Inc., 475 SCRA 636, 650) or in petitions for writ of amparo or habeas data or in case of actions to annul the judgment of the RTC over which the Court of Appeals has original jurisdiction (Bar 2008).

2. Sec. 9 of B.P. 129, as amended provides: x x x

“The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform


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any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings x x x” (See Prince Transport, Inc. v. Garcia, 639 SCRA 312, 324, January 12, 2011).

H. Jurisdiction of the Court of Tax Appeals

Aside from its jurisdiction over certain criminal offenses, Sec. 7 of R.A. 9282 provides that the Court of Tax Appeals shall exercise:

A. Exclusive appellate jurisdiction to review by appeal, as herein provided:

1. Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue or other laws administered by the Bureau of Internal Revenue;

2. Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial;

3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction;

4. Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs;


5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals;

6. Decisions of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Sec. 2315 of the Tariff and Customs Code;

7. Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping and countervailing duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under R.A. 8800, where either party may appeal the decision to impose or not to impose said duties. B. Jurisdiction over tax collection cases as herein provided: 1. Exclusive original jurisdiction in tax collection cases

involving final and executory assessments for taxes, fees, charges and penalties: Provided, however, That collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than One million pesos (PI,000,000.00) shall be tried by the proper Municipal Trial Court, Metropolitan Trial Court, and Regional Trial Court.

2. Exclusive appellate jurisdiction in tax collection cases: a. Over appeals from the judgments, resolutions or

orders of the Regional Trial Courts in tax collection cases originally decided by them, in their respective territorial jurisdiction.

b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the


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exercise of their appellate jurisdiction over tax collection cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, in their respective jurisdictions.

I. Jurisdiction of Municipal Trial Courts

Explanatory note 1. R.A. 7691, (An Act Expanding the Jurisdiction of the

Metropolitan Courts, Municipal Trial Courts, and Municipal Trial Courts, Amending for the Purpose Batas Pamhansa Big. 129, Otherwise Known as the “Judiciary Reorganization Act of 1980”) which took effect on April 15,1994 (Per Administrative Circular 09-94, June 14, 1994), amended the jurisdictional provisions of B.P. 129 and in effect has expanded the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and the Municipal Circuit Trial Courts. The succeeding paragraphs treat of the jurisdiction of said courts which shall be referred to as the “MTC.”

2. When R.A. 7691 took effect on April 15, 1994, the jurisdiction of the MTC was set at an amount not exceeding P100,000.00 outside Metro Manila, and not exceeding P200,000.00 in Metro Manila. However, Sec. 5 of R.A. 7691 provided that five (5) years from the effectivity of R.A. 7691, the amount of P100,000.00 for courts outside Metro Manila shall be adjusted to P200,000.00 and the amount of P200,000.00 for Metro Manila shall be adjusted to P400,000.00. It further provided that the jurisdictional amount of P200,000.00 for courts outside Metro Manila shall be further adjusted to P300,000.00 five (5) years thereafter. Hence, at present, the jurisdiction of the MTC outside Metro Manila covers an amount not exceeding P300,000.00. That of the Metropolitan Trial Court re-mains constant at an amount not exceeding P400,000.00.

The pertinent provision provides: “Section 5. After five (5) years from the effectivity of this Act, the

jurisdictional amounts mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Big.


129 as amended by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the abovementioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity of this Act to Four hundred thousand pesos (P400,000.00).”

3. The jurisdictional amount referred to is the value of the personal property, estate, or amount of the demand involved in the civil action or proceedings (Sec. 33[1], B.P. 129, as amended).

Demand not exceeding P300,000.00 or P400,000.00 1. The MTC exercises exclusive original jurisdiction over

civil actions where the value of the personal property, estate or amount of the demand does not exceed P300,000.00 outside Metro Manila, or not more than P400,000.00 within Metro Manila (Sec. 1, R.A. No. 7691; Sec. 33[1], B.P. 129, as amended). Where the demand exceeds the amounts mentioned, the Regional Trial Court has exclusive original jurisdiction (Sec. 19[8], B.P. 129, as amended).

Note: The amount of P300,000.00 is the result of adjustments authorized under Sec. 5 of R.A. 7691.

2. The jurisdictional amount does not include the following: (a) interest; (b) damages of whatever kind; (c) attorney’s fees; (d) litigation expenses; and (e) costs (Sec. 33[1], B.P. 129, as amended).

Although excluded in determining the jurisdiction of the court, the above items however, shall be included in the determination of the filing fees (Sec. 33[1], B.P. 129, as amended).


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3. In Administrative Circular No. 09-94, it was made clear that “The exclusion of the term ‘damages of whatever kind’ in determining the jurisdictional amount under Section 19 (8) and Section 33 (1) of B.P. Big. 129, as amended by R.A. No. 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.”

The totality rule 1. Under the totality rule, where there are several claims or

causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions (Sec. 33[1], B.P. 129, as amended).

2. The totality rule presupposes that the various claims of the same or different parties are allowed to be embodied in the same complaint or that the different causes of action which are joined accrue in favor of the same plaintiffs and against the same defendant/s and that no misjoinder of parties is involved. If so, then the total amount of the claims shall be the basis of the court’s jurisdiction and not the amount of the individual claims. This rule is applied in relation to the rules on permissive joinder of parties in Sec. 6 of Rule 3 and the rules on joinder of causes of action under Sec. 5 of Rule 2 (Please refer to discussions in the succeeding chapter; See also Pantranco North Express, Inc. v. Buncan, 453 SCRA 482, 489).

Illustration: DD owes PP the following: P250,000 representing the balance on the purchase price of a car; P200,000 based on a simple loan; P275,000 also based on another loan. All debts are due and a demand to pay went unheeded. If an action is filed and the causes of action are joined, the basis of


jurisdiction would be the total amount due. The RTC, in this case, has jurisdiction. If each debt is made the subject of a separate complaint, the MTC, by reason of the amount, has jurisdiction.

Actions involving personal property The MTC has exclusive original jurisdiction over civil actions

where the value of the personal property in controversy does not exceed P300,000.00 (outside Metro Manila), or does not exceed P400,000.00 in Metro Manila (Sec. 33[1], B.P. 129, as amended; Sec. 3, R.A. 7691). If the value of the property exceeds the said amounts, the Regional Trial Court shall have jurisdiction (Sec. 19[8], B.P. 129, as amended).

Probate proceedings 1. The MTC has exclusive original jurisdiction over probate

proceedings, testate and intestate, where the gross value of the estate does not exceed P300,000.00 outside Metro Manila or, P400,000.00 within Metro Manila (Sec. 3, RA. 7691; Sec. 19[4], B.P. 129, as amended; Sec. 33[1], B.P. 129, as amended). Where the gross value of the estate exceeds the amounts mentioned, the Regional Trial Court has exclusive original jurisdiction (Sec. 19[4], B.P. 129, as amended).

2. A petition for probate of a will involving an estate valued at P200,000.00 falls under the jurisdiction of the MTC (Bar 1997, No. l[el).

Granting provisional remedies The MTC has exclusive original jurisdiction to grant

provisional remedies in proper cases (Sec. 33[1], B.P. 129, as amended). This rule presupposes that the MTC has jurisdiction over the principal action.

Delegated jurisdiction 1. The MTC also exercises delegated jurisdiction in cadastral

and land registration cases covering lots where there


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is no controversy or opposition, or contested lots the value of which does not exceed P100,000.00, as may be delegated by the Supreme Court (Sec. 34, B.P. 129; Sec. 4, RA. 7691).

2. The value of the lot shall be ascertained by (a) the affidavit of the claimant or by (b) agreement of the respective claimants if there are more than one, or (c) from the corresponding tax declaration of the real property (Sec. 34, B.P. 129, as amended by RA. 7691).

3. The decisions of these courts shall be appealable in the same manner as the decisions of the Regional Trial Courts (Sec. 34, B.P. 129, as amended; Sec. 4, RA. 7691). Hence, the MTC acting under its delegated jurisdiction may be deemed to be acting as a Regional Trial Court. The decision of the MTC in cadastral and land registration cases therefore, shall be appealable to the Court of Appeals following the procedure in Rule 41. (Bar 2009)

4. The jurisdiction is only a delegated one because it is the Regional Trial Court (formerly Court of First Instance) which normally has jurisdiction over cadastral and land registration cases.

A recent case held:

“x xx Under Act No. 496, otherwise known as the Land Registration Act, as amended by Act No. 2347, jurisdiction over all applications for registration of title to land was conferred upon the Courts of First Instance (CFI) of the respective provinces in which the land sought to be registered was situated. Jurisdiction over land registration cases, as in ordinary actions, is acquired upon the filing in court of the application for registration, and is retained up to the end of the litigation (City ofDuma- guete v. Philippine Ports Authority, G.R. No. 168973, August 24, 2011).

xxx

Presently, jurisdiction over an application for land registration remains with the RTC where the land is situated, except when such jurisdiction is delegated by the Supreme Court to the Metropolitan Trial Court, Munici


pal Trial Courts, and Municipal Circuit Trial Courts under certain circumstances” (City ofDumaguete v. Philippine Ports Authority, G.R. No. 168973, August 24, 2011).

Special jurisdiction 1. The MTC has also been conferred by law a special

jurisdiction to hear and decide petitions for a writ of habeas corpus in the absence of all the Regional Trial Court judges in the province or city (Sec. 35, B.P. 129, as amended).

2. The special jurisdiction includes the authority to hear and decide applications for bail in criminal cases in the province or city where the absent Regional Trial Court judges sit (Sec. 35, B.P. 129, as amended).

Summary procedure; small claims cases The MTC has exclusive jurisdiction over cases falling under the

1991 Rules on Summary Procedure (Sec. 36, B.P. 129, as amended) and the Rule of Procedure for Small Claims Cases (Sec. 2, A.M. No. 08-8-7-SC)

Actions for forcible entry and unlawful detainer (Bar 2009) 1. The MTC has exclusive original jurisdiction over forcible

entry and unlawful detainer cases (Sec. 33[2], B.P. 129, as amended; Sec. 3, RA. 7691). These are both ejectment cases otherwise known as accion interdictal.

2. When the defendant, in an unlawful detainer case or a forcible entry case, raises the question of ownership in his pleadings and the issue of possession cannot be resolved without deciding the issue of ownership, the court may resolve the issue of ownership but only for the purpose of determining the issue of possession (Sec. 33[2], B.P. 129, as amended; Sec. 3, RA. 7691; Habagat Grill v. DMC-Urban Property Developer, Inc., 454 SCRA 653, 670).

3. An adjudication made in an ejectment proceeding regarding the issue of ownership should be regarded merely as provisional and, therefore, would not bar or prejudice an


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action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real property, that is, possession de facto and not possession de jure (Garcia v. Zosa, Jr., 469 SCRA 334, 337- 338).

Garcia v. Zosa specifically holds:

“[Th]e [Court] ha[s] ruled that all ejectment cases are within the jurisdiction of the courts mentioned in Section 33 x x x of Batas Pambansa Big. 129, as amended, regardless of whether said cases involve questions of ownership or even if the issue of possession cannot be determined without resolving the question of ownership. The judgment of the inferior court, however, on the question of ownership is of a provisional nature and shall be for the sole purpose of determining the issue of possession. It shall not bind the title of the realty or affect the ownership thereof nor shall it bar an action between the same parties respecting title to the real property. Verily, [th]e [Court] hold[s] that the Court of Appeals did not err in holding that the MTC has jurisdiction to hear and decide Civil Case No. 2728 for forcible entry, notwithstanding the issue of ownership raised by petitioner in her answer.”

Real actions other than forcible entry and unlawful detainer (Bar 2010)

1. The MTC also has exclusive original jurisdiction over civil actions involving title to or possession of real property, or any interest therein, where the assessed value of the property or interest therein does not exceed P20,000 outside Metro Manila or P50,000 in Metro Manila. The amounts mentioned are exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs (Sec. 33[3], B.P. 129, as amended).

In cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed


value of the adjacent lots (Sec. 3, RA. 7691; Sec. 33[3], B.P. 129, as amended). (Bar 2008)

2. The jurisdiction of the court under R.A. 7691, over an action involving title to or possession of land is now determined by the assessed value of the said property and not the market value thereof. The assessed value of real property is the fair market value of the real property multiplied by the assessment level. It is synonymous to taxable value. The fair market value is the price at which a property may be sold by a seller, who is not compelled to sell, and bought by a buyer, who is not compelled to buy (Hilario v. Salvador, 457 SCRA 815, 826).

Note: The above rule excludes the real actions of forcible entry and unlawful detainer cases which are within the exclusive original jurisdiction of the MTC regardless of the assessed value of the property involved (Sec. 33[2], B.P. 129, as amended).

The real actions for example, of accion reivindicatoria and accion publiciana used to be under the jurisdiction of the Regional Trial Court. Jurisdiction over these actions under R.A. 7691 is now determined by the assessed value of the property and depending on such value may not be filed in the Regional Trial Court but in the Municipal Trial Court (Hilario v. Salvador, supra).

3. The rule that accion publiciana lies with the Regional Trial Court regardless of the value of the property, no longer holds true. As things now stand under R.A. 7691, a distinction must be made between those properties the assessed value of which does not exceed P20,000, if outside Metro Manila and P50,000, if within Metro Manila (in which case an accion publiciana should be filed in the MTC). Where the assessed value is greater than the amounts mentioned, the Regional Trial Court has jurisdiction (Quinagoran v. Court of Appeals, 531 SCRA 104,112-114, Bar 2010).

4. An accion publiciana is an ordinary civil proceeding to determine the better right of possession of realty independently of title.


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Accion publiciana is also used to refer to an ejectment suit where the cause of dispossession is not among the grounds for forcible entry and unlawful detainer, or when possession has been lost for more than one year and can no longer be maintained under Rule 70 of the Rules of Court. The objective of the plaintiff in an accion publiciana is to recover possession only, not ownership (Modesto v. Urbina, 633 SCRA 383, 391, October 18, 2010).

5. Accion publiciana is a plenary action for recovery of possession in an ordinary civil proceeding, in order to determine the better and legal right to possess, independently of title. The objective of the plaintiffs in accion publiciana is to recover possession only, not ownership. However, where the parties raise the issue of ownership, the courts may pass upon the issue to determine who between the parties has the right to possess the property. This adjudication, however, is not a final and binding determination of the issue of ownership; it is only for the purpose of resolving the issue of possession where the issue of ownership is inseparably linked to the issue of possession. The adjudication of the issue of ownership, being provisional, is not a bar to an action between the same parties involving title to the property (Catindig v. Vda. De Meneses, 641 SCRA 350, 359-360, February 2, 2011).

6. An accion reivindicatoria is a suit which has for its object the recovery of possession over the real property as owner. It involves recovery of ownership and possession based on said ownership. On the other hand, an accion publiciana is one for the recovery of possession of the right to possess. It is also referred to as an ejectment suit filed after the expiration of one year after the occurrence of the cause of action or from the unlawful withholding of possession of the realty. It is considered a plenary action to recover the right of possession when dispossession was effected by means other than unlawful detainer or forcible entry.

The determining jurisdictional element for accion reivindicatoria, as R.A. 7691 discloses, is the assessed value of the property in question. For properties in the provinces, the


RTC has jurisdiction if the assessed value exceeds P20,000, and the MTC, if the assessed value is P20,000 or below. An assessed value can have reference only to the tax rolls in the municipality where the property is located, and is contained in the tax declaration. It is elementary that the tax declaration indicating the assessed value of the property enjoys the presumption of regularity as it has been issued by the proper government agency (Hilario v. Salvador, 457 SCRA 815, 827).

Declared in a more recent case:

“Before the amendment introduced by Republic Act No. 7691, the plenary action of accion publiciana was to be brought before the Regional Trial Court. With the modifications introduced by R.A. No. 7691 in 1994, the jurisdiction of the first level courts has been expanded to include jurisdiction over other real actions where the assessed value does not exceed P20,000 and P50,0000 where the action is filed in Metro Manila. The first level courts thus have exclusive original jurisdiction over accion publiciana and accion reivindicatioria where the assessed value of the property does not exceed the aforestated amounts. Accordingly, the jurisdictional element is the assessed value of the property” (Vda. De Barrera v. Heirs ofLegaspi, 565 SCRA 192, 197; Underscoring supplied).

7. Where the ultimate objective of the plaintiffs is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof (Barangay Piapi v. Talip, 469 SCRA 409, 413).

Similarly, it may be argued that where the action is for reconveyance of title to real property, cancellation of title to real property or quieting of title to real property, and the objective of the action as shown by the allegations of the complaint and the relief prayed for is to actually obtain title to real property, jurisdiction over such actions is determined by the assessed value of the property.


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8. The Court in Heirs ofValeriano S. Concha v. Spouses Gregorio J. Lumocso, 540 SCRA 1, explained:

“x x x Actions for reconveyance of or for cancellation of title to or to quiet title over real property are actions that fall under the classification of cases that involve title to, or possession of, real property, or any interest therein.

The Court further elaborated: “The original text of Section 19(2) of B.P. Big. 129 as

well as its forerunner, Section 44(b) of R.A. No. 296, as amended, gave the RTCs (formerly courts of first instance) exclusive original jurisdiction ‘in all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, (MTCs), and Municipal Circuit Trial Courts (conferred upon the city and municipal courts under R.A. No. 296, as amended).’ Thus, under the old law, there was no substantial effect on jurisdiction whether a case is one, the subject matter of which was incapable of pecuniary estimation, under Section 19(1) of B.P. Big. 129 or one involving title to property under Section 19(2). The distinction between the two classes became crucial with the amendment introduced by R.A. No. 7691 in 1994 which expanded the exclusive original jurisdiction of the first level courts to include ‘all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.’ Under the present law, original jurisdiction over cases the subject matter of which involves ‘title to, possession of, real property or any interest therein’ under Section 19(2) of B.P. Big. 129 is divided between the first and second level courts, with the assessed value of the real property involved as the benchmark. This amendment


was introduced to ‘unclog the overloaded dockets of the RTCs which would result in the speedier administration of justice.’” (Heirs of Valeriano S. Concha v. Spouses Gregorio J. Lumocso, 540 SCRA 1,17-18).

9. The ruling in the case treated in the immediately preceding number was adopted in a subsequent controversy. In San Pedro v. Asdala, G.R. No. 164560, July 22, 2009, the respondents filed with the Metropolitan Trial Court (MeTC) of Quezon City, Branch 42, a complaint against the petitioners for accion reinvindicatoria, quieting of title and damages, with prayer for preliminary mandatory injunction involving a property alleged to have an assessed value of P32,100.00. Accordingly, the petitioners claimed that they were the owners of a parcel of land that encompasses and covers the subject property and that the respondents had allegedly been prevented from entering, possessing and using the subject property. It was further alleged that the petitioners’ Transfer Certificate of Title over their alleged property was spurious. The respondents prayed among others, that they be declared the sole and absolute owners of the subject property and that petitioners be ordered to surrender possession of the said property to them.

The petitioners, for their part, filed a motion to dismiss said complaint on the ground that the MeTC had no jurisdiction over the subject matter of the action, as the subject of litigation was incapable of pecuniary estimation. The motion to dismiss was denied. The denial was anchored on the relevant provisions of B.P. 129 as amended declaring that the MeTC has exclusive original jurisdiction over actions involving title to or possession of real property of small value. The petitioners’ motion for reconsideration was also denied.

Petitioners assailed the aforementioned order by filing a petition for certiorari with the Regional Tried Court which dismissed the petition, finding no grave abuse of discretion on the part of the MeTC. The RTC sustained the MeTC ruling, stating that, in accordance with Sec. 33(3) of Republic Act (R.A.) 7691, amending B.P. 129, the MeTC had jurisdiction over the


complaint for accion reinvindicatoria, as it involves recovery of ownership and possession of real property located in Quezon City, with an assessed value not exceeding P50,000.00.

The Supreme Court in sustaining the lower courts merely reiterated its ruling in Heirs of Valeriano S. Concha, Sr. v. Spouses Lumocso, 540 SCRA 1.

Basis is assessed value (Bar 2008; 2009) 1. Also illustrative of the application of the rules on

jurisdiction brought about by R.A. 7691 is the latter case of Geonzon Vda. De Barrera v. Heirs of Vicente Legaspi, 565 SCRA 192.

The facts point to a complaint for reconveyance of possession of real property with preliminary injunction and damages filed in the Regional Trial Court. One of the defenses raised by the defendants was the court’s lack of jurisdiction over the complaint, the assessed value of the subject property as reflected in the uncontroverted tax declaration being only Pll,160.00. The trial court, in its decision, rejected the contention of the defendant. The court held that since the complaint alleged the estimated value of the land as P50,000.00, such allegation must prevail over the assessed value of Pll,160.00 relied upon by the defense. What determines the nature of the action and the jurisdiction over the complaint, said the trial court, are the facts alleged in the complaint and not those alleged in the answer of the defendants. The Court of Appeals affirmed the trial court’s disposition of the issue of jurisdiction over the subject matter.

In a subsequent petition for review on certiorari, the Supreme Court held:

“The subject land has an assessed value of Pll,160 as reflected in Tax Declaration No. 7565, a common exhibit of the parties. The bare claim of respondents that it has a value of P50,000 thus fails. The case, therefore, falls within the exclusive original jurisdiction of the municipal trial court.


“It was error then for the RTC to take cognizance of the complaint based on the allegation that ‘the present estimated value [of the land is] P50,000’ x x x The estimated value, commonly referred to as the fair market value is entirely different from the assessed value of the property.”

2. One later case is likewise illuminating. Here, the plaintiffs filed in the Regional Trial Court an action for annulment of documents, reconveyance and recovery of possession of two lots which had a total assessed value of P9,910.00. The complaint also prayed for damages. The plaintiffs claimed that they owned the subject lots but, through fraud, the defendant allegedly succeeded in having them sign documents (affidavits of quitclaim) conveying the lots to him. Being illiterate, they relied on the explanation of the defendant that what they signed were “deeds of real estate mortgage” covering a loan that they got from him. Although it appeared that the documents which turned out to be deeds conveying ownership over the two lots were notarized, the plaintiffs claimed that they did not appear before any notary public. Using the affidavits of quitclaim, the defendant applied for and obtained free patent titles covering the two lots.

The RTC dismissed the case for lack of jurisdiction over the subject matter because accordingly, the ultimate relief sought by the plaintiffs was the reconveyance of title and possession over two lots that had a total assessed value of less than P20,000.00. The RTC concluded that the complaint should have been filed with the Municipal Trial Court.

In their motion for reconsideration which was denied, the plaintiffs pointed out that the RTC should have classified their complaint as one for annulment of documents, an action incapable of pecuniary estimation and not one involving title to or possession of real property because in their complaint, they asked the court, not only to resolve the dispute over possession of the lots, but also to rule on the validity of the affidavits of quitclaim, the subsequent deeds of confirmation of sale, and the titles over the properties. The plaintiffs claimed


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that their action was, first, for the declaration of nullity of the documents of conveyance that the defendant tricked them into signing and, second, for the reconveyance of the certificate of title for the two lots that the defendant succeeded in getting. The subject of their action is, they conclude, incapable of pecuniary estimation. Thus, the RTC should try the case as provided in Sec. 19 of B.P. 129, as amended.

The Court identified the issue as whether or not the action involving the two lots valued at less than P20,000.00 falls within the jurisdiction of the RTC.

The Court in ruling on the issue started with a restatement of the principle that x x x “Whether a court has jurisdiction over the subject matter of a particular action is determined by the plaintiffs allegations in the complaint and the principal relief he seeks in the light of the law that apportions the jurisdiction of courts.”

The Court found, on the basis of the allegations of the complaint that the action is, not about the declaration of the nullity of the documents or the reconveyance to the plaintiffs of the certificates of title covering the two lots. The Court emphasized that “these would merely follow after the trial court shall have first resolved the issue of which between the contending parties is the lawful owner of such lots, the one also entitled to their possession. Based on the pleadings, the ultimate issue is whether or not defendants defrauded the plaintiffs of their property by making them sign documents of conveyance rather than just a deed of real estate mortgage to secure their debt to him. The action is, therefore, about ascertaining which of these parties is the lawful owner of the subject lots, jurisdiction over which is determined by the assessed value of such lots.

Here, the total assessed value of the two lots subject of the suit is P9,910.00. Clearly, this amount does not exceed the jurisdictional threshold value of P20,000.00 fixed by law. The other damages that the plaintiffs claim are merely incidental to their main action and, therefore, are excluded in the computation of the jurisdictional amount.”


Continued the Court:

“Based on the above allegations and prayers of the xxx complaint, the law that applies to the action is Batas Pambansa 129, as amended. If this case were decided under the original text of Batas Pambansa 129 or even under its predecessor, Republic Act 296, determination of the nature of the case as a real action would have ended the controversy. Both real actions and actions incapable of pecuniary estimation fell within the exclusive original jurisdiction of the RTC.

But, with the amendment of Batas Pambansa 129 by Republic Act 7601, the distinction between these two kinds of actions has become pivotal. The amendment ex-panded the exclusive original jurisdiction of the first level courts to include real actions involving property with an assessed value of less than P20,000.00.

The power of the RTC under Section 19 of Batas Pambansa 129, as amended, to hear actions involving title to, or possession of, real property or any interest in it now covers only real properties with assessed value in excess of P20,000.00. But the RTC retained the exclusive power to hear actions the subject matter of which is not capable of pecuniary estimation. Section 33, on the other hand provides that, if the assessed value of the real property outside Metro Manila involved in the suit is P20,000.00 and below, as in this case, jurisdiction over the action lies in the first level courts” (Heirs of Sebe v. Heirs Sevilla, G.R. No. 174497, October 12, 2009).

Inquiring into the allegations of the complaint and the relief sought; alleging the assessed value

1. Jurisprudence had always stressed the need to inquire into the material allegations of the complaint and the character of the relief sought in order to determine the nature of and subject matter of a petition or complaint, irrespective of whether the petitioner or complainant is entitled to any or all such reliefs (Vda. De Herrera v. Bernardo, G.R. No. 170251, June 1, 2011).


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One early case interpreting the provisions of R.A. 7691 on jurisdiction over real actions had its inception in a complaint for annulment of a transfer certificate of title to a land and deed of sale, and partition filed by the plaintiffs (petitioners) against the defendants (respondents) in the Regional Trial Court.

The complaint filed averred that the plaintiffs bought, under an oral sale, a small lot from the defendants. The lot was part of a bigger land owned by the defendants and which the defendants purchased earlier from a previous owner. After full payment of the price, the plaintiffs built a house on the lot. Notwithstanding repeated demands for the execution of a deed of sale, the plaintiffs claim that the defendants refused and failed to heed their demand and instead secured a Transfer Certificate of Title on the whole land solely in their names. The plaintiffs likewise alleged that they demanded for the partition of the lot, and to segregate a portion in which their residential house stands but the defendants allegedly refused.

The plaintiffs in their complaint prayed that the deed of sale between the defendants and the previous owner of the lot in question be annulled and cancelled; that the lot in question be partitioned and that a portion on which the house of the plaintiffs is situated be segregated. They further prayed that the Transfer Certificate of Title over the entire land in the name of the defendants be annulled and cancelled and that the Register of Deeds be directed to issue a Transfer Certificate of Title for the portion of the land bought from the defendants.

The respondents filed a motion to dismiss the complaint on the ground of lack of jurisdiction over the subject matter of the case, arguing that the total assessed value of the subject land was only P15,000.00, an amount which puts the action within the exclusive jurisdiction of the Municipal Trial Court, pursuant to Sec. 33(3)of B.P. 129, as amended by R.A. 7691.

The petitioners filed an opposition to the motion to dismiss alleging that the subject matter of the action is incapable of pecuniary estimation and, therefore, is cognizable by the


Regional Trial Court, as provided by Sec. 19(1) of B.P. 129, as amended. The trial court dismissed the complaint for lack of jurisdiction. Petitioners filed a Motion for Reconsideration, which was denied.

The Court, in deciding that the RTC had no jurisdiction over the action, relied mainly on the doctrine that what determines the nature of an action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought.

In interpreting the allegations and the prayer of the complaint, the Court held that “the principal purpose of petitioners in filing the complaint was to secure title to the 50-square meter portion of the property which they purchased from respondents.”

The Court expounded, thus: “Petitioners’ cause of action is based on their right

as purchaser of the 50-square meter portion of the land from respondents. They pray that they be declared own-ers of the property sold. Thus, their complaint involved title to real property or any interest therein. The alleged value of the land which they purchased was P15,000.00, which was within the jurisdiction of Municipal Trial Court. The annulment of the deed of sale between Ma. Lourdes Villaber-Padillo and respondents, as well as of TCT No. 99694, were prayed for in the complaint because they were necessary before the lot may be partitioned and the 50-square meter portion subject thereof may be conveyed to petitioners.

Petitioners’ argument that the present action is one incapable of pecuniary estimation considering that it is for annulment of deed of sale and partition is not well-taken. As stated above, the nature of an action is not determined by what is stated in the caption of the complaint but by the allegations of the complaint and the reliefs prayed for. Where, as in this case, the ultimate objective of the plaintiffs is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof (Spouses Huguete v. Spouses Embudo, 405 SCRA 273, 279-280).


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2. Similarly decided is a case where the petitioners filed with the RTC a complaint for reconveyance and damages with prayer for issuance of a temporary restraining order and/ or writ of preliminary injunction against respondent. Aside from the doctrine already enunciated in Huguete, the Court also emphasized the importance of alleging the assessed value of the property subject of the action.

The complaint alleged that petitioners and their prede- cessors-in-interest have been in actual, peaceful, continuous, and open possession for more than 30 years of a parcel of land consisting of 3.2 hectares with a market value of P15,000.00 and which is covered by Original Certificate of Title. The same land was subdivided into lots consisting of 100 square meters each, where the individual petitioners built their houses. On the remaining portion were constructed their barangay center, multi-purpose gym and health center. Petitioners also alleged that the respondent fraudulently obtained from the Registry of Deeds a Transfer Certificate of Title (TCT) in his name.

Instead of filing an answer, the respondent moved to dismiss the complaint on the ground that the RTC has no jurisdiction over the case considering that the assessed value of the land is only P6,030.00. Respondent, citing Sec. 33 (3) of B.P. 129, as amended by R.A. 7691 maintains that the case falls within the exclusive jurisdiction of the Municipal Circuit Trial Court. The trial court issued an order dismissing the complaint for lack of jurisdiction.

In the Supreme Court, the petitioners contend that under Sec. 19 (1) of B.P. 129, as amended, the RTC has jurisdiction over the complaint for reconveyance since it is incapable of pecuniary estimation.

In deciding against the petitioners, the Court declared:

“The contention is bereft of merit. This case is analo-gous to Huguete v. Embudo (405 SCRA 273). There, peti-tioners argued that a complaint for annulment of a deed of sale and partition is incapable of pecuniary estimation,


and thus falls within the exclusive jurisdiction of the RTC. However, [th]e [Court] ruled that ‘the nature of an action is not determined by what is stated in the caption of the complaint but by the allegations of the complaint and the reliefs prayed for.’ Where the ultimate objective of the plaintiffs, like petitioners herein, is to obtain title to real property, it should be filed in the proper court hav-ing jurisdiction over the assessed value of the property subject thereof.

Indeed, basic as a hornbook principle is that the na-ture of an action, as well as which court or body has ju-risdiction over it, is determined based on the allegations contained in the complaint of the plaintiff, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein.”

The Court further found: “It can easily be discerned that petitioners’ com-

plaint involves title to, or possession of, real property. However, they failed to allege therein the assessed value of the subject property. Instead, what they stated is the market value of the land at P15,000.00.”

X X X

The Rule requires that “the assessed value of the property, or if there is none, the estimated value thereof, shall be alleged by the claimant. It bears reiterating that what determines jurisdiction is the allegations in the complaint and the reliefs prayed for. Petitioners’ com-plaint is for reconveyance of a parcel of land. Considering that their action involves the title to or interest in real property, they should have alleged therein its assessed value. However, they only specified the market value or estimated value, which is P15,000.00. Pursuant to the provision of Section 33 (3) quoted earlier, it is the Munici-pal Circuit Trial Court... which has jurisdiction over the case” (Barangay Piapi v. Talip, 469 SCRA 409, 413-415).

3. In another early case, the respondent filed a complaint with the Regional Trial Court against the petitioner, a farmer, for recovery of the possession of a parcel of agricul


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tural land. He alleged that the petitioner, by means of threat, strategy, and stealth, took possession of his property and deprived him of its possession. The respondent prayed that, after due proceedings, judgment be rendered in his favor, ordering the petitioner to vacate the property and pay him actual damages, attorney’s fees, and expenses of litigation.

In his answer to the complaint, the petitioner averred that the dispute between him and the respondent was agrarian in nature, within the exclusive jurisdiction of the DAR.

One issue which reached the Supreme Court was whether or not the RTC had jurisdiction over the action filed by the respondent.

The Court agreed with the ruling of the RTC that, as gleaned from the material averments of the complaint, the action of the respondent against the petitioner is not an agrarian dispute within the exclusive jurisdiction of the DARAB. The Court once again emphasized in this case the well-entrenched principle that the jurisdiction of the court over the subject matter of the action is determined by the material allegations of the complaint and the law, irrespective of whether or not the plaintiff is entitled to recover all or some of the claims or reliefs sought therein.

The Court added:

“It is axiomatic that the nature of an action and the jurisdiction of a tribunal are determined by the material allegations of the complaint and the law at the time the action was commenced. Jurisdiction of the tribunal over the subject matter or nature of an action is conferred only by law and not by the consent or waiver upon a court which, otherwise, would have no jurisdiction over the subject matter or nature of an action. Lack of jurisdiction of the court over an action or the subject matter of an action cannot be cured by the silence, acquiescence, or even by express consent of the parties. If the court has no jurisdiction over the nature of an action, it may dismiss the same ex mero motu or motu proprio. A decision of the court without jurisdiction is null and void; hence, it could


never logically become final and executory. Such a judg-ment may be attacked directly or collaterally.

x x x However, [th]e [Court] findfs] and so hold[s] that the

RTC had no jurisdiction over the action of the respondent. In this case, the respondent filed his complaint against the petitioner on May 24, 1994. Hence, the jurisdiction of the regular court over the nature of this action is governed by Republic Act No. 7691, which took effect on April 15, 1994.

x x x The complaint does not contain any allegation of the

assessed value of Lot 4-E covered by TCT No. 47171. There is, thus, no showing on the face of the complaint that the RTC had exclusive jurisdiction over the action of the respondent, xxx Hence, all the proceedings in the RTC, including its decision, are null and void” (Laresma v. Abellana, 442 SCRA 156, 169-173).

4. The case of Quinagoran v. Court of Appeals, 531 SCRA 104, 113-114, which was earlier discussed could be seen as a reiteration of the rule that the complaint has to allege the assessed value of the property. Here, the petitioner maintained that the complaint must allege the assessed value of the real property subject of the action to which argument the Court agreed.

A complaint, ruled the Court in Quinagoran, “must allege the assessed value of the property x x x to determine which court has jurisdiction over the same. This is because the nature of the action and which court has original and exclusive jurisdiction over the same is determined by the material allegations of the complaint, the type of relief prayed for by the plaintiff and the law in effect when the action is filed x x x.”

Actions involving title to real property; meaning An action “involving title to real property” means that the

plaintiff's cause of action is based on a claim that he owns such property or that he has the legal rights to have exclusive


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control, possession, enjoyment, or disposition of the same. Title is the “legal link between (1) a person who owns property and (2) the property itself” (Heirs of Sebe v. Heirs of Sevilla, 603 SCRA 395, 404; See also Vda. De Herrera v. Bernardo, G.R. No. 170251, June 1, 2011, Citation No. 11).

“Title” is different from a “certificate of title” which is the document of ownership under the Torrens system of registration issued by the government through the Register of Deeds. While title is the claim, right or interest in real property, a certificate of title is the evidence of such claim.

Another way of looking at it is that, while “title” gives the owner the right to demand or be issued a “certificate of title,” the holder of a certificate of title does not necessarily possess valid title to the real property. The issuance of a certificate of title does not give the owner any better title than what he actually has in law. Thus, a plaintiffs action for cancellation or nullification of a certificate of title may only be a necessary consequence of the defendant’s lack of title to real property. Further, although the certificate of title may have been lost, burned, or destroyed and later on reconstituted, title subsists and remains unaffected unless it is transferred or conveyed to another or subjected to a lien or encumbrance (Heirs of Sebe v. Heirs of Sevilla, 603 SCRA 395, 404-405).

Appeal of judgments of the MTC Judgments of the MTC shall be appealable to the Regional

Trial Courts (Sec. 38, B.P. 129 as amended; Sec. 1, Rule 40, Rules of Court).

J. Jurisdiction Of The Regional Trial Courts

Exclusive original jurisdiction of the RTC Under Sec. 19 of B.P. 129, as amended and other pertinent

provisions of the same law, the Regional Trial Courts shall exercise exclusive original jurisdiction over the following cases:

1. All civil actions in which the subject of the litigation is incapable of pecuniary estimation;


2. All civil actions which involve title to, or possession of real property or an interest therein, where the assessed value of such property involved exceeds P20,000 outside Metro Manila, or for civil actions in Metro Manila where such value exceeds P50,000;

Note: Excepted from the above rule are actions for forcible entry and unlawful detainer of land or buildings, exclusive original jurisdiction over which is conferred upon the MTC.

3. All actions in admiralty and maritime jurisdiction where the demand or claim exceeds P300,000 outside Metro Manila, or in Metro Manila, where such demand or claim exceeds P400,000. (Bar 2010)

4. All matters of probate, both testate and intestate, where the gross value of the estate exceeds P300,000 outside Metro Manila or, in probate matters in Metro Manila, where such gross value exceeds P400,000.

5. In all actions involving the contract of marriage and marital relations.

Note: This jurisdiction is deemed modified by Sec. 5 of R.A. 8369, the law which established the Family Courts. However, under Sec. 17 of R.A. 8369, in areas where there are no Family Courts, the cases referred to in Sec. 5 of the law shall be adjudicated by the Regional Trial Court.

6. All cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasijudicial functions

Note: This jurisdiction is often described as the ‘general’ jurisdiction of the RTC making it a court of ‘general jurisdiction.’

7. All civil actions and special proceedings falling within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law.

Note: The jurisdiction of the RTC over cases under the exclusive original jurisdiction of the Juvenile and Domestic


Relations Court is subject to R.A. 8369, the law establishing Family courts.

8. All other cases in which the demand or the value of the property in controversy exceeds P300,000 outside Metro Manila, or in Metro Manila where the demand exceeds P400,000, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.

Concurrent original jurisdiction 1. Concurrent and original jurisdiction with the Supreme

Court in actions affecting ambassadors, other public ministers, and consuls (Sec. 21[2], B.P. 129, as amended; Sec. 5, Art. VIII, Constitution of the Philippines).

2. Concurrent and original jurisdiction with the Supreme Court and the Court of Appeals in petitions for certiorari, prohibition, and mandamus against lower courts and bodies and in petitions for quo warranto and habeas corpus (Sec. 21[1], B.P. 129; Sec. 9[1], B.P. 129).

Appellate jurisdiction 1. The Regional Trial Court exercises appellate jurisdiction

over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions (Sec. 22, B.P. 129, as amended).

2. The decisions of the Regional Trial Court in the exercise of its appellate jurisdiction shall be appealable by petition for review to the Court of Appeals. The appeal shall be given due course only when the petition shows prima facie that the lower court has committed an error of fact or law that would warrant a reversal or modification of the decision or judgment sought to be reviewed (Sec. 22, B.P. 129, as amended).

Special jurisdiction to try special cases Certain branches of the Regional Trial Court may be designated by

the Supreme Court to handle exclusively criminal


cases, juvenile and domestic relations cases, agrarian cases, urban and land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice (Sec. 23, B.P. 129, as amended).

Jurisdiction over intra-corporate controversies Sec. 5.2 in relation to PD 902-A of the Securities Regulation

Code (R.A. 8799) provides that the Regional Trial Courts shall exercise original and exclusive jurisdiction to hear and decide the following cases:

(a) Cases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the Commission.

(b) Controversies arising out of intra-corporate or part-nership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity.

(c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations; and

(d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meet


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ing them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee.

The RTC is a court of general jurisdiction Unlike the Municipal Trial Court, which is a court of limited

jurisdiction because it can only take cognizance of cases expressly provided by law, the Regional Trial Court is a court of general jurisdiction because all cases, the jurisdiction of which is not specifically provided by law to be within the jurisdiction of any other court falls within the jurisdiction of the Regional Trial Court (Durisol Philippines, Inc. v. Court of Appeals, 377 SCRA 353; Sec. 19[6], B.P. 129).

Actions incapable of pecuniary estimation (Bar 1997; 2003; 2009) 1. A simpler restatement of jurisprudence discloses that to

determine if an action is one incapable of pecuniary estimation, it is necessary to ascertain the nature of the principal remedy sought. If it is primarily for the recovery of a sum of money, it is capable of pecuniary estimation. Jurisdiction over the action would then depend upon the amount of the claim. Where the basic issue is something other than the right to recover a sum of money, or the money claim is merely incidental to the principal relief, the action is incapable of pecuniary estimation (Russel v. Vestil, 304 SCRA 739, 744; Barangay San Roque v. Heirs of Pastor, 334 SCRA 127,132-133).

An action for reformation of an instrument, rescission of a contract or an action for specific performance are examples of actions incapable of pecuniary estimation.

2. A complaint for expropriation is incapable of pecuniary estimation. An expropriation suit does not involve the recovery of money. Rather it deals with the exercise by the government of its authority and right to take private property


for public use (Barangay San Roque v. Heirs of Pastor, 334 SCRA 127, 133). The subject of the expropriation suit is the government’s exercise of eminent domain, a matter that is incapable of pecuniary estimation (Barangay San Roque, supra at 134).

3. An action seeking to annul a resolution of a government-owned and controlled corporation is an action incapable of pecuniary estimation (Polomolok Water District v. Polo- molok General Consumers Association, Inc., 636 SCRA 647, 652-653).

4. An action to annul a Deed of Declaration of Heirs and for a partition of land with an assessed value of P5,000.00 is an action incapable of pecuniary estimation where the partition aspect is only incidental to the action for annulment. (Russel v. Vestil, 304 SCRA 739, 745-746).

5. The nature of the action is not determined by what is stated in the caption of the complaint but by the allegations of the complaint and the relief prayed for. The ultimate objective of the complaint must be inquired into. Hence, an action for reconveyance of real property will not be deemed one incapable of pecuniary estimation where the ultimate objective is to obtain title to the property.

“Where the ultimate objective of the plaintiffs, x x x is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof’ (Barangay Pipi v. Talip, 469 SCRA 409, 413).

6. An action for the annulment of an extrajudicial foreclosure sale of real property with an assessed value of P50,000 located in Laguna is incapable of pecuniary estimation (Bar 2000).

7. An action for partition of a real property located in Taytay, Rizal and with an assessed value of P20,000, the resolution of which involves the determination of hereditary rights, is an action incapable of pecuniary estimation and thus, should be filed in the Regional Trial Court (Suggested


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Answer, UP Law Center, Bar2000). Note: This situation could also involve an answer more consistent with current laws on jurisdiction. It could be argued that an action for partition of real property is one which involves interest in real property. Hence, jurisdiction would be dependent on the assessed value of the property.

8. An action for specific performance to compel the defendant to execute a deed of conveyance covering a parcel of land with an assessed value of P19,000.00 is an action incapable of pecuniary estimation and is cognizable by the Regional Trial Court because the main issue is whether or not there is a right to compel specific performance (Suggested Answer, UP Law Center, Bar 2003). Note: This answer is subject to an alternative answer which asserts that where the primary purpose of the action is to recover or obtain ownership of the real property, the action is one affecting title to real property and is therefore, a real action. In a real action, jurisdiction is determined by the assessed value of the property and hence, because the assessed value under the facts is P19,000.00 the action is within the jurisdiction of the MTC.

9. An action for specific performance is one generally considered incapable of pecuniary estimation (Russel v. Vestil, 304 SCRA 738, 745).

The amount of damages that may be claimed in addition to the prayer for specific performance is not determinative of jurisdiction. Thus, an action for specific performance and damages of P200,000.00 is cognizable by the Regional Trial Court even if the amount of damages sought to be recovered is within the jurisdiction of the Municipal Trial Court.

Where however, the demand is in the alternative, as in an action to compel the defendant to deliver the house by completing its construction QL to pay the sum of P644.31, the action is one that is capable of pecuniary estimation (Cruz v. Tan, 87 Phil. 627, 629). Thus, an action for specific performance or in the alternative, for damages in the amount of P180,000.00 is one capable of pecuniary estimation because of the alternative prayer which is for a sum of money. Here,


the amount of damages is determinative of jurisdiction (Bar 1997, No. l[a]).

10. If as gleaned from the complaint, the principal relief sought by the complaint is for the court to issue an injunction against the adverse party and his representatives to permanently enjoin them from preventing the survey of the subject land, the complaint is not a possessory action but one for injunction. As such, the subject matter of litigation is incapable of pecuniary estimation and properly cognizable exclusively by the Regional Trial Court under Sec. 19(1) of B.P. 129, as amended by R.A. 7691 (Bokingo v. CA, 489 SCRA 521, 532-533).

11. An action for a writ of injunction is within the jurisdiction of the Regional Trial Court. It is an action incapable of pecuniary estimation (Bar 1997, No. l[b]; Bar 2009).

12. An action for the replevin of a motorcycle valued at P150 thousand is capable of pecuniary estimation. The basis of jurisdiction is the value of the personal property sought to be recovered. The amount of P150 thousand falls within the jurisdiction of the MTC (Bar 1997, No. l[c]).

13. An action for interpleader is capable of pecuniary estimation where the subject matter is either real or personal property. If the subject of interpleader is real property, then the jurisdictional amount is determined by the assessed value of the land. If it be personal property, then the value of the property.

However, if the subject matter of the case is the performance of an obligation, the subject matter is one incapable of pecuniary estimation and the MTC has no jurisdiction (See Feria and Noche, Provisional Remedies and Special Civil Actions, 2007, p. 147).

Hence, an action for interpleader to determine who between the defendants is entitled to receive the amount of P190,000.00 from the plaintiff is within the jurisdiction of the MTC (Bar 1997).


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Extent of trial court’s jurisdiction when acting as a probate court (Bar 2011)

1. A probate court cannot adjudicate or determine title to properties claimed to be part of the estate and also claimed by outside parties. All that the court could do is to determine whether they should or should not be included in the inventory or list of properties to be administered. For the purpose of determining whether a certain property should or should not be included in the inventory, the probate court may pass upon the title thereto but such determination is not conclusive and is subject to a final determination in a separate action (Cuizon v. Ramolete, 129 SCRA 495, 499; Bolisay v. Alcid, 85 SCRA 213, 220; Pacioles, Jr. v. Chuatoco-Ching, 466 SCRA 90, 97- 98).

2. However, if the interested parties are all heirs, or the parties consent to the assumption of jurisdiction by the probate court and third parties are not prejudiced or injured thereby, the probate court may decide questions on ownership (Coca v. De Pangilinan, 171 Phil. 246; Cunanan v. Amparo, 80 Phil. 227; Bar 2011).

K. Jurisdiction of the Family Courts

Under R.A. 8369, the Family Courts shall have exclusive original jurisdiction over the following civil cases:

1. Petitions for guardianship, custody of children and habeas corpus involving children;

2. Petitions for adoption for children and the revocation thereof;

3. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;

4. Petitions for support and/or acknowledgment;


5. Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the “Family Code of the Philippines;”

6. Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under P.D. 603, E.O. 56 (series of 1986) and other related laws;

7. Petitions for the constitution of the family home; 8. Cases against minors cognizable under the Dangerous

Drugs Act, as amended; 9. Violations of R.A. 7610, otherwise known as the “Special

Protection of Children Against Child Abuse, Exploitation and Discrimination Act;” and

10. Cases of domestic violence against: a. Women — which are acts of gender based violence

that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman’s personhood, integrity and freedom movement; and

b. Children — which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. If an act constitutes a criminal offense, the accused or batterer

shall be subject to criminal proceedings and the corresponding penalties. If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court (Sec. 5, RA. 8369).

In areas where there are no Family Courts, the above-enumerated cases shall be adjudicated by the Regional Trial Court (Sec. 17, RA. 8369).


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L. Jurisdiction of Shari’a Courts

Shari’a courts; types 1. The Shari’a courts were created under Art. 137 of P.D.

1083 dated February 4,1977. Their creation, as stated in Art. 2 of the decree, is a recognition of “the legal system of the Muslims in the Philippines as part of the law of the land and seeks to make Islamic institutions more effective.”

2. The courts created under the decree are the (a) Shari’a District Courts and the (b) Shari’a Circuit Courts (Art. 137, P.D. 1083). Under the same article, the Shari’a courts and the personnel thereof are subject to the administrative supervision of the Supreme Court.

3. The Shari’a District judges receive the same compensation and enjoy the same privileges as the judges of Courts of First Instance, now Regional Trial Courts (Art. 142, P.D. 1083). Shari’a Circuit Court judges shall receive the same compensation and enjoy the same privileges as judges of Municipal Circuit Courts. (Art. 154, P.D. 1083) or of the present Municipal Trial Courts.

Original jurisdiction of Shari’a District Courts

By virtue of Art. 143 of P.D. 1083, the Shari’a District Court shall have exclusive original jurisdiction over:

(a) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code;

(b) All cases involving disposition, distribution and settlement of the estate of the deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property;

(c) Petitions for the declaration of absence and death and for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of the Code;


(d) All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and

(e) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction.

Concurrent jurisdiction of Shari’a District courts Concurrently with existing civil courts, the Shari’a District

Court shall have original jurisdiction over: (a) Petitions by Muslims for the constitution of a family

home, change of name and commitment of an insane person to an asylum;

(b) All other personal and real actions not mentioned in paragraph (d) of the immediately preceding topic, wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Court; and

(c) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims.

Appellate jurisdiction of Shari’a District Courts 1. Shari’a District Courts shall have appellate jurisdiction

over all cases tried in the Shari’a Circuit Courts within their territorial jurisdiction.

2. The Shari’a District Court shall decide every case appealed to it on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit (Art. 144, P.D. 1083).

Finality of decisions Under Art. 145 of the decree, the decisions of the Shari’a

District Courts whether on appeal from the Shari’a Circuit Court or not, shall be final. Nothing herein contained shall


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affect the original and appellate jurisdiction of the Supreme Court as provided in the Constitution.

Original jurisdiction of Shari’a Circuit Courts The Shari’a Circuit Courts shall have exclusive original

jurisdiction over: (1) All cases involving offenses defined and punished under

this Code. (2) All civil actions and proceedings between parties who are

Muslims or have been married in accordance with Art. 13 involving disputes relating to:

(a) Marriage; (b) Divorce recognized under the Code (P.D. 1083); (c) Betrothal or breach of contract to marry; (d) Customary dower (mahr); (e) Disposition and distribution of property upon

divorce; (f) Maintenance and support, and consolatory gifts,

(mu?a); and (g) Restitution of marital rights.

(3) All cases involving disputes relative to communal properties. (Art. 155, P.D. 1083).

Rules applicable The Shari’a courts shall be governed by special rules of

procedure as the Supreme Court may promulgate (Art. 148 and Art. 158, P.D. 1083).

M. Jurisdiction Over Civil Cases Subject to Summary Procedure (Basic Features)

Scope of the 1991 Revised Rules on Summary Procedure The rules shall govern the procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Munici


pal Trial Courts, and the Municipal Circuit Trial Courts (Sec. 1,1991 Revised Rules on Summary Procedure).

Civil cases subject to summary procedure (Bar 2004; 1995; 1993; 1991; 1989; 1988)

The civil cases subject to summary procedure are: (a) all cases of forcible entry and unlawful detainer

irrespective of the amount of damages or unpaid rentals sought to be recovered (Bar 1995); and

(b) all other cases where the total amount of the plaintiffs claim does not exceed P100,000 (outside Metro Manila), or does not exceed P200,000 (Metro Manila), exclusive of interests and costs. Probate proceedings are not covered by the rule on summary procedure even if the gross value of the estate does not exceed P100,000 or P200,000 (Sec. 1A, 1991 Revised Rules on Summary Procedure, as amended by A.M. 02-11-09-SC, effective November 25, 2002).

Pleadings allowed Not all pleadings in an ordinary civil action are allowed in a

summary procedure. The only pleadings allowed are: (a) complaint, (b) compulsory counterclaim, pleaded in the answer, (c) cross-claim pleaded in the answer, and (d) answer to these pleadings (Sec. 3, 1991 Revised Rules on Summary Procedure). Under the same provision, all the pleadings shall be verified.

Prohibited pleadings and motions Under Sec. 19 of the Rules on Summary Procedure, the

following pleadings and motions are prohibited in a summary procedure (Bar 2004):

1. Motion to dismiss except upon two grounds, namely: (a) failure to comply with the barangay conciliation proceedings, and (b) lack of jurisdiction over the subject matter.

2. Motion for bill of particulars;


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3. Motion for new trial, or a motion for reconsideration of a judgment, or a motion for reopening of trial;

4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits

and other papers; 6. Memoranda; 7. Petition for certiorari, mandamus or prohibition against

an interlocutory order of the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions. Although a petition for certiorari is prohibited in cases subject

to summary procedure, the Court in one case allowed the petition because the trial court gravely abused its discretion by indefinitely suspending the proceedings in ejectment cases thus, acting contrary to the purposes of the Rules on Summary Procedure. The Supreme Court recognized that because the order of the trial court cannot be appealed from it being interlocutory and since the proceedings are covered by the Rules on Summary Procedure, a ‘procedural void’ exists. Invoking its power to suspend the rules to promote substantial justice, the Supreme Court gave due course to the petition pro hac vice because of the extraordinary circumstances of the case. The Court observed that allowing the petition would avoid the mischiefs sought to be curbed by the Rules and would give spirit and life to the Rules on Summary Procedure (Go v. Court of Appeals, 297 SCRA 574).

It must be emphasized that in a civil case governed by the Rules on Summary Procedure, no hearing is conducted. Instead, the parties are required to submit their respective position papers (Five Star Marketing Corporation v. Booc, 535 SCRA 28, 47).


Outright dismissal The court in a summary procedure may dismiss the case

outright on any of the grounds for the dismissal of a civil action apparent from the complaint, the examination of the allegations therein and the evidence attached thereto. If no ground for dismissal is found, the court shall forthwith issue summons. The summons shall state that the summary procedure applies to the case (Sec. 4, 1991 Revised Rules on Summary Procedure).

Answer 1. Within ten (10) days from service of summons, the

defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. The answer should contain the affirmative and negative defenses applicable. Those defenses not pleaded in the answer shall be deemed waived. The only defense not deemed waived is lack of jurisdiction over the subject matter (Sec. 5, 1991 Revised Rules on Summary Procedure). Also, cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred (Sec. 5, 1991 Revised Rules on Summary Procedure).

2. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded (Sec. 5,1991 Revised Rules on Summary Procedure).

Effect of failure to answer Should the defendant fail to answer the complaint within the

period of ten (10) days from service of summons, the court may, motu proprio, or on motion of the plaintiff, render judgment (not an order declaring the defendant in default) as may be warranted by the facts alleged and limited to what is prayed for (Sec. 6,1991 Revised Rules on Summary Procedure).

Preliminary conference; effects of failure to appear 1. Not later than thirty (30) days after the last answer is

filed, a preliminary conference shall be held using the rules on


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pre-trial in ordinary cases unless inconsistent with the herein rules (Sec. 7, 1991 Revised Rules on Summary Procedure).

2. The failure of the plaintiff to appear in the preliminary conference shall be a cause for dismissal of his complaint. If the defendant appears and the plaintiff does not, the defendant shall be entitled to judgment on his counterclaim in accordance with Sec. 6 of the Rules and all cross-claims shall be dismissed (Sec. 7, 1991 Revised Rules on Summary Procedure).

3. If the sole defendant fails to appear, the plaintiff shall be entitled to judgment in accordance with Sec. 6 of the Rules on Summary Procedure. This rule shall not apply where one of two or more defendants who are sued under a common cause of action and who have pleaded a common defense shall appear (Sec. 7, 1991 Revised Rules on Summary Procedure).

Subsequent proceedings 1. Record of preliminary conference — Within five (5) days

after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including, but not limited to the matters stated in Sec. 8 of the 1991 Revised Rules on Summary Procedure.

2. Submission of affidavits and position papers — Within ten (10) days from the receipt of the order mentioned above, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order. The position papers setting forth the law and the facts relied upon by the parties shall also be submitted (Sec. 9, 1991 Revised Rules on Summary Procedure).

The affidavits to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence. The affiants shall also show their competence to testify to the matters stated therein (Sec. 20, 1991 Revised Rules on Summary Procedure). A violation of this rule may subject the party or counsel who submits the defective affidavit to disciplinary action and shall be cause for such affidavit or


portion thereof to be expunged from the record (Sec. 20, 1991 Revised Rules on Summary Procedure).

3. Rendition of judgment - Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment (Sec. 10, 1991 Revised Rules on Summary Procedure).

Appeal 1. The judgment or final order of the Municipal Trial Court

shall be appealable to the appropriate Regional Trial Court (Sec. 21, 1991 Revised Rule on Summary Procedure). The RTC shall decide the appeal on the basis of the entire record of the proceedings held in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court (Sec. 22, B.P. 129, as amended).

2. The decision of the Regional Trial Court in civil cases governed by the Rule on Summary Procedure, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal which may be taken therefrom (Sec. 21,1991 Revised Rules on Summary Procedure).

3. The decision of the Regional Trial Court shall be appealable to the Court of Appeals by petition for review on an error of fact or law (Sec. 22, B.P. 129, as amended) under Rule 42 of the Rules of Court.

N. Jurisdiction Over Small Claims Cases (Basic Features)

A.M. No. 08-8-7-SC, as amended 1. By virtue of A.M. No. 08-8-7-SC, the Rule of Procedure

for Small Claims Cases took effect on October 1, 2008. The Rules of Civil Procedure apply suppletorily to small

claims cases but only insofar as they are not inconsistent with A.M. No. 08-8-7-SC. Thus, certain motions and pleadings


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normally allowed in civil actions are prohibited in small claims cases.

2. The following are not allowed under Sec. 14 of A.M. No. 08-8-7-SC:

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction. Note as amended, the exception (on the ground of lack of jurisdiction) has been deleted) Please see Appendix B;

(b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings,

affidavits or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third-party complaints; and (1) Interventions.

3. One characteristic of a small claim action is the use of forms which simply have to be filled up by a party or the court. For instance, instead of filing a complaint prepared by the plaintiff or his counsel, a Statement of Claim using Form I-SCC shall be filed. The answer of the defendant shall be filed by way of a Response using Form 3-SCC. The decision of the court shall be contained in Form 13-SCC.

4. The purpose of the small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts. The theory behind the small claims system is that ordinary litigation fails to bring practical justice to the parties when the disputed claim is small, because the time


and expense required by the ordinary litigation process is so disproportionate to the amount involved that it discourages a just resolution of the dispute.

5. The small claims process is designed to function quickly and informally. There are no attorneys (Sec. 17, A.M. No. 08-8-7-SC, as amended), no formal pleadings and no strict legal rules of evidence. The small claims court system is not a “typical inferior court.” Parties are encouraged to file small claims court actions to resolve their minor disputes as opposed to resorting to self-help or forcible means to seek their remedy (Explanatory note to A.M. No. 08-8-7-SC citing Pace v. Hillcrest Motor Co., 161 Cal. Rptr. 663, 664 Ct. App. 1980).

6. The Rule governs the procedure in actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for the payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interests and costs (Sec. 2, A.M. No. 08-8-7-SC, as amended).

Applicability 1. The Rule of Procedure for Small Claims Cases applies to

the following actions: (a) All actions that are purely civil in nature where the

claim or relief prayed for by the plaintiff is solely for payment/reimbursement of a sum of money; and

(b) The civil aspect of criminal actions, either filed prior to the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure (Sec. 4, A.M. No. 08-8-7-SC, as amended). 2. The claims or demands referred to may be for any of the

following: (a) for money owed; (b) for damages; or (c) for enforcement of a barangay amicable settlement

or an arbitration award involving money claims


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covered by this Rule pursuant to Sec. 417 of R.A. 7160, otherwise known as the “Local Government Code of 1991” (Sec. 4, A.M. No. 08-8-7-SC, as amended). If it is for money owed, the claim may arise from: (a) a contract

of lease; (b) a contract of loan; (c) a contract of services; (d) a contract of sale; or (e) a contract of mortgage (Sec. 4, A.M. No. 08-8-7-SC, as amended).

If the claim be for damages, said claim may arise from (a) fault or negligence; (b) quasi-contract; or (c) contract (Sec. 4, A.M. No. 08-8-7-SC, as amended).

3. While there are various sources of the claims which can be the subject of a small claims action, the claims must be solely for money. Hence, a claim for delivery of goods or of documents cannot be covered by the Rule.

The explanatory note of the Rule of Procedure for Small Claims Cases declares that a suit cannot be brought in a Small Claims Court to force a person or business to fix a damaged good, or to demand fulfillment of a promised obligation which is not purely for money. Some of the kinds of cases which are allowed as small claims include the following:

(a) Actual damage caused to vehicles, other personal property, real property or person;

(b) Payment or reimbursement for property, deposit or money loaned;

(c) Payment for services rendered, insurance claim, rent, commissions, or for goods sold and delivered;

(d) Money claims pursuant to a contract, warranty or agreement; and

(e) Purely civil action for payment of money covered by bounced or stopped check.

Commencement of the action 1. The action is commenced by filing with the court Form I-

SCC with the court. Form I-SCC is the Statement of


Claim and which must be duly accomplished and verified. The Claim must be filed in duplicate. No other formal pleading other than the Statement of Claim is necessary to initiate a small claims action (Sec. 5, A.M. No. 08-8-7-SC, as amended).

The plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided that the total amount claimed exclusive of interests and costs, does not exceed P100,000 (Sec. 6, A.M. No. 08-8-7-SC, as amended).

2. The plaintiff shall pay the docket and other legal fees unless allowed to litigate as an indigent (Sec. 8, A.M. No. 08-8-7-SC, as amended).

3. The Statement of Claim must be accompanied by a Certification of Non-Forum Shopping written in Form I-A SCC (Sec. 5, A.M. No. 08-8-7-SC, as amended).

If the Claim is based on an actionable document, two (2) duly certified photocopies of the document must accompany the Statement of Claim (Sec. 5, A.M. No. 08-8-7-SC, as amended). Also to be attached are the affidavits of witnesses and other evidence to support the claim. The attachments are very important because evidence not attached to or submitted together with the Claim shall be not allowed during the hearing, unless good cause is shown for the admission of additional evidence (Sec. 5, A.M. No. 08-8-7-SC, as amended).

4. The affidavits submitted shall state only facts of direct personal knowledge of the affiants. Affidavits not complying with the requirement shall be inadmissible in evidence and such affidavits or portions thereof shall be expunged from the record. Also, a violation of this requirement shall subject the party to appropriate disciplinary action. Even the counsel who assists the party in the preparation of the affidavits shall likewise be subject to disciplinary action (Sec. 7, A.M. No. 08- 8-7-SC, as amended).

Action of the court 1. When the court receives the Statement of Claim filed, it

shall make a determination whether or not the same


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falls under the Rule. If it so determines that the matter is a small claim, the court may dismiss the case outright based on any ground for the dismissal of a civil action apparent from the Claim. The basis of the dismissal shall be the allegations of the Claim and such evidence attached thereto (Sec. 9, A.M. No. 08-8-7-SC, as amended).

2. Under the administrative guidelines for judges dated February 16, 2010, upon receipt of a case, a judge is required to consider the following:

“1.1. It must involve a pure money claim the principal amount of which does not exceed P100,000.00.

1.2. If the principal claim exceeds P100,000.00, there must be a waiver of the excess embodied in the Statement of Claim.

1.3. With regard to B.P. 22 cases, the court may only entertain the civil aspect as a small claim if no complaint for the offense has yet been filed before the Office of the Prosecutor. This fact must be stated under oath by the plaintiff in the Statement of Claim, and there should be an express waiver of such criminal action in the Verification and Certification of Non-Forum Shopping.

1.4. If a case is determined by a judge to be not a ‘small claim’ within the meaning of the Rule, but it still falls within the jurisdiction of the First Level Courts, the case should not be dismissed, and the judge should instead declare it governed by the appropriate procedure (Regular Procedure or Summary Procedure). The case should then be re-docketed but no re-assignment (by raffle in a multi-sala court) is necessary. This will prevent the forfeiture of the filing fees already paid by the party, and the case can be immediately acted upon by the same court.” 3. “The submission of a Certificate to File Action from the

barangay is a pre-requisite in Small Claims covered by the barangay justice system.


Under Rule 16 par. (j) of the 1997 Rules of Civil Procedure, non-compliance with a condition precedent is a ground for dismissal of a complaint. Chapter VII (Secs. 399-422) of R.A. 7160, the Local Government Code, now embodies the rules for mandatory conciliation proceedings before the barangay in covered cases. Although the Rule on Small Claims Cases does not expressly refer to such requirement, it is still mandatory as it is required by law. Non-compliance, therefore, with the barangay requirement is still a ground for dismissal pursuant to Rule 16 of the regular rules, which apply suppletorily according to Section 25 of the Rul e” (Administrative Guidelines for Judges, February 16, 2010).

Summons and notice of hearing 1. If no ground for dismissal is found, the court shall issue

the Summons designated as Form 2-SCC, directing the defendant to file a verified Response.

2. Also to be issued, but this time to both parties, is the Notice embodied in Form 4-SSC, directing the parties to appear before the court on a specific date and time for hearing. This Notice shall contain a warning that no unjustified postponement shall be allowed. It shall also contain an express prohibition against the filing of a motion to dismiss or any other motion under Sec. 14 of the Rule on Small Claims Cases (Sec. 10, A.M. No. 08-8-7-SC, as amended).

Response; counterclaim 1. The defendant shall file his verified Response with the

court and serve the same on the plaintiff within ten (10) days from receipt of the Summons. This period is non-extendible. The response shall be accompanied by certified photocopies of documents, as well as affidavits of witnesses and other evidence. Evidence not so attached shall not be allowed during the hearing except when good cause is shown for the admission of additional evidence (Sec. 11, A.M. No. 08- 8-7-SC, as amended).

2. If at the time the action is commenced, the defendant possesses a claim against the plaintiff that (a) is within the


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coverage of this Rule, exclusive of interests and costs; (b) arises out of the same transaction or event that is the subject matter of the plaintiffs claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response. If it is not filed, the defendant shall be barred from suit on the counterclaim (Sec. 13, A.M. No. 08-8-7-SC, as amended, Bar 2011).

If the counterclaim does not arise out of the same transaction or occurrence that is the subject matter of the plaintiffs claim, the defendant may also elect to file a counterclaim against the plaintiff provided two requirements are met: (a) the amount and nature of the counterclaim are within the coverage of the herein rule; and (b) the prescribed docket and other legal fees are paid (Sec. 13, A.M. No. 08-8-7-SC, as amended).

Failure to file a response 1. If the defendant fails to file his Response within the

required period, and also fails to appear at the date set for hearing, the court shall render judgment on the same day, as may be warranted by the facts (Sec. 12, A.M. No. 08-8-7-SC, as amended).

2. If the defendant fails to file his Response within the required period but he appears at the date set for hearing, the court shall ascertain what defense he has to offer and proceed to hear, mediate or adjudicate the case on the same day as if a Response has been filed (Sec. 12, A.M. No. 08-8-7-SC, as amended).

Appearance on date of hearing; postponement 1. The general rule is that the parties shall appear at the

designated date of hearing personally. Appearance through a representative is not the rule. Exception: When a valid cause is shown. Also, the representative of the individual- party must not be a lawyer and must be related to or next-of- kin of said party. A party which is a juridical entity shall not


be represented by a lawyer in any capacity (Sec. 16, A.M. No. 08-8-7-SC, as amended).

2. The representative must be authorized under a Special Power of Attorney using Form 5-SCC. The representative is authorized to perform the following acts:

(a) to enter into an amicable settlement of the dispute; and

(b) to enter into stipulations or admissions of facts and of documentary exhibits (Sec. 16, A.M. No. 08-8-7- SC, as amended).

3. A request for postponement of a hearing may be granted only upon proof of the physical inability of the party to appear before the court. Only one (1) postponement may be availed of by a party (Sec. 19, A.M. No. 08-8-7-SC, as amended).

Non-appearance at the hearing 1. The failure of the plaintiff to appear shall be cause for the

dismissal of the claim without prejudice (hence, action may be refiled). The defendant who appears shall be entitled to judgment on a permissive counterclaim (not compulsory counterclaim) (Sec. 18, A.M. No. 08-8-7-SC, as amended).

2. Failure of the defendant to appear shall have the same effect as a failure to file a Response under Sec. 12. This rule shall not apply when other defendants who are sued under a common cause of action and have pleaded a common defense appear at the hearing (Sec. 18, A.M. No. 08-8-7-SC, as amended).

3. Failure of both parties to appear shall cause the dismissal with prejudice of both the claim and counterclaim (Sec. 18, A.M. No. 08-8-7-SC, as amended).

Appearance of attorneys

1. No attorney shall appear in behalf of a party or represent a party at the hearing. Appearance of the attorney


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shall be allowed only if the attorney is the plaintiff or the defendant (Sec. 17, A.M. No. 08-8-7-SC, as amended).

2. The inability of a party to properly present his claim or defense is not a reason to allow the appearance of an attorney. In such an event, the court, in its discretion, may allow another individual who is not an attorney to assist the party, provided it is with the latter’s consent (Sec. 17, A.M. No. 08-8-7-SC, as amended).

Duties of the court during the hearing; confidentiality of settlement discussions

1. At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, the purpose, and the rule of procedure of small claims cases (Sec. 20, A.M. No. 08-8-7-SC, as amended).

2. Under Sec. 21 of A.M. No. 08-8-7-SC, as amended, at the hearing, the judge shall exert efforts to bring the parties to an amicable settlement of their dispute. Any settlement (Form 7-SCC) or resolution (Form 8-SCC) of the dispute shall be reduced into writing, signed by the parties and submitted to the court for approval (Form 12-SCC).

Confidentiality The settlement discussions shall be strictly confidential and

any reference to any settlement made in the course of such discussions shall be punishable by contempt (Sec. 21, A.M. No. 08-8-7-SC, as amended).

Failure of settlement If efforts at settlement fail, the hearing shall proceed and shall

be conducted in an informal and expeditious manner. It shall be terminated within one (1) day (Sec. 22, A.M. No. 08- 8-7-SC, as amended).

Decision After the hearing, the court shall render its decision on the same

day, based on the facts established by the evidence


(Form 13-SSC). The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties (Sec. 23, A.M. No. 08- 8-7-SC, as amended).

No appeal The decision of the court shall be final and unappealable (Sec.

23, A.M. No. 08-8-7-SC, as amended).

Execution If the decision is rendered in favor of the plaintiff, the

judgment shall be executed upon motion using Form 9-SCC (Sec. 24, A.M. No. 08-8-7-SC, as amended).

O. Jurisdiction Over Barangay Conciliation Proceedings (Basic Features)

Basic Principles 1. The Revised Katarungang Pambarangay Law

under Secs. 399-422 of R.A. 7160, otherwise known as the Local Government Code of 1991, effective on January 1, 1992 and which repealed P.D. 1508, introduced substantial changes not only in the authority granted to the Lupong Tagapamayapa but also in the procedure to be observed in the settlement of disputes within the authority of the Lupon.

2. The proceedings before the Lupong Tagapamayapa or the Pangkat ng Tagapagkasundo of the Barangay are not judicial proceedings. Legally, there is no barangay court. The Lupon and the Pangkat do not have inherent adjudicatory powers. They resolve disputes or attempt to do so through mediation and conciliation. Any adjudicatory power exercised by any of these bodies must be agreed upon by the parties in writing. Such agreement may involve their willingness to abide by any arbitral award given by the Lupon or the Pangkat (Sec. 413, Chapter 7, Title One, Book III, R.A. 7160).


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3. The primordial aim of the Katarungang Pamba- rangay Law is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts (Zamora v. Heirs of Izquierdo, 443 SCRA 224; Bar 1999).

The barangay justice system was established primarily as a means of easing up the congestion of cases in the judicial courts. Originally embodied in P.D. 1508, it is now incorporated in R.A. 7160, otherwise known as the Local Government Code (Aquino v. Aure, 546 SCRA 71).

Initiation of proceedings 1. Upon payment of the appropriate filing fee, any in-

dividual who has a cause of action against another individual involving any matter within the authority of the Lupon may complain, orally or in writing to the chairman of the Lupon (Sec. 410[a], RA. 7160). The chairman of the Lupon is the Punong Barangay (Sec. 399, RA. 7160). The fact that the complaint was addressed to the barangay captain is of no moment because he is the chairman of the Lupong Tagapamayapa (Magno v. Velasco-Jacoba, 475 SCRA 584).

2. Upon receipt of the complaint, the chairman shall summon the respondents within the next working day to appear. If the chairman fails in his mediation efforts within fifteen (15) days from the first meeting, he shall set a date to constitute the Pangkat ng Tagapagkasundo (Sec. 410[b], RA. 7160).

Personal appearance of parties The parties must appear in person in all Katarungang

Pambarangay proceedings and without the assistance of counsel or representatives, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers (Sec. 415, RA. 7160; Magno v. Velasco-Jacoba, 475 SCRA 584, 589; Bar 1999).


Parties to the proceedings Only individuals shall be parties to the proceedings either as

complainants and respondents. Hence, no complaint by or against corporations, partnerships or other juridical entities shall be filed, received or acted upon (Sec. 1, Rule VI, Katarungang Pambarangay Rules). Subject matters for settlement (Bar 2009)

All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law and prior recourse thereto is a pre-condition before filing a complaint in court or any government offices except in the following disputes (See Administrative Circular No. 14-93, July 15, 1993; Sec. 408, Local Government Code):

(a) Where one party is the government, or any sub-division or instrumentality thereof;

(b) Where one party is a public officer or employee and the dispute relates to the performance of his official functions;

(c) Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

(d) Any complaint by or against corporations, part-nerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);

(e) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;

(f) Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine of over five thousand pesos (P5,000.00);


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(g) Offenses where there is no private offended party; (h) Disputes where urgent legal action is necessary to

prevent injustice from being committed or further continued, specifically the following:

(i) Criminal cases where accused is under police custody or detention (See Sec. 412 [b][l], Revised Katarungang Pambarangay Law);

(ii) Petitions for habeas corpus by a person il-legally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf;

(iii) Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and

(iv) Actions which may be barred by the Statute of Limitations. (i) Any class of disputes which the President may

determine in the interest of justice or upon the recom-mendation of the Secretary of Justice;

(j) Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 and 47, R. A. 6657);

(k) Labor disputes or controversies arising from employer-employee relations (Montoya v. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment);

(1) Actions to annul judgment upon a compromise which may be filed directly in court (See Sanchez v. Tu- paz, 158 SCRA 459); and


(m) Any class of disputes which the President may determine in the interest of justice or upon the recom-mendation of the Secretary of Justice.

Referral to the Lupon by the court The court in which a non-criminal case is filed may motu

proprio refer the case, at any time before trial, to the Lupon concerned for amicable settlement, the foregoing rules not-withstanding and even if the case does not fall within the authority of the Lupon (Sec. 1, Rule VI, Katarungang Pambarangay Rules, Sec. 408, R.A. 7160).

Form of settlement All amicable settlements shall be in writing, in a language or

dialect known to the parties, signed by them and attested to by the lupon chairman or the pangkat chairman, as the case may be. When the parties to the dispute do not use the same language or dialect, the settlement shall be written in the language or dialect known to them (Sec. 411, R.A. 7160).

Effect of amicable settlement and award 1. The amicable settlement and arbitration award shall

have the effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court (Sec. 416, R.A. 7160).

2. Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence or intimidation. Such repudiation shall be a sufficient basis for the issuance of the certification for filing a complaint (Sec. 418, RA. 7160). Failure to repudiate the settlement within the ten-day period shall be deemed a waiver of the right to challenge the settlement on said grounds (Sec. 14, Rule VI, Katarungang Pambarangay Rules).


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Execution of award or settlement 1. Execution shall issue upon the expiration of ten (10) days

from date of settlement or receipt of award (Sec. 1, Rule VII, Katarungang Pambarangay Rules).

2. The amicable settlement or award may be enforced by execution by the Lupon within six (6) months from date of the settlement or date of receipt of the award or from the date the obligation stipulated or adjudged in the settlement becomes due and demandable. After the lapse of such time, the settlement or award may be enforced by the appropriate local court pursuant to the applicable provisions of the Rules of Court (Sec. 1, Rule VII, Katarungang Pambarangay Rules; Berba v. Pablo, 474 SCRA 686). The time line of six months should be computed from the date of settlement (Vidal v. Escueta, 417 SCRA 617).

3. The disputants may file a motion with the Punong Barangay, copy furnished to the other disputants, for the execution of a final settlement or award which has not been complied with (Sec. 3, Rule VII, Katarungang Pambarangay Rules).

Importance of barangay conciliation proceedings 1. “No complaint, petition, action, or proceeding involving

any matter within the authority of the Lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the Lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the Lupon secretary or pangkat secretary as attested to by the Lupon or Pangkat chairman or unless the settlement has been repudiated” (Sec. 412, RA. 7160; See also Zamora v. Heirs of Izquierdo, 443 SCRA 24, 31-32).

2. Under the Rules on Summary Procedure, a motion to dismiss may be filed on the ground of failure to undergo the barangay conciliation proceedings (Sec. 19[a], Rules on Summary Procedure). Under Sec. 18 of the same Rule, “Cases requiring referral to the Lupon for conciliation xxx where


there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with x x x.”

3. Under Sec. l(j) of Rule 16, a motion to dismiss a civil complaint may be filed if a condition precedent to the filing of an action is not complied with. Failure to undergo the barangay conciliation proceedings is non-compliance of a condition precedent.

4. The court may not motu proprio dismiss a case on the ground of failure to comply with the requirement for barangay conciliation, the ground not being among those mentioned for the dismissal of a complaint on the initiative of the court. Sec. 1 of Rule 9 of the Rules of Court provides only the following grounds for a motu proprio dismissal:

(a) the court has no jurisdiction over the subject matter;

(b) there is another cause of action pending between the same parties for the same cause;

(c) the action is barred by a prior judgment; and (d) the action is barred by the statute of limitations

(Aquino v. Aure, 546 SCRA 71). 5. The conciliation proceedings required is not a ju-

risdictional requirement because the failure to have prior recourse to it does not deprive the court of its jurisdiction (Jun- son v. Martinez, 405 SCRA 390).

6. “A case filed in court without compliance with prior Barangay conciliation which is a pre-condition for formal adjudication (Sec. 412 [a] of the Revised Katarungang Pambarangay Law) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of the court but for insufficiency of the cause of action or prematurity (Royales v. IAC, 127 SCRA 470; Gonzales v. CA, 151 SCRA 289), or the court may suspend proceedings upon petition of any party under Sec. 1, Rule 21 of the Rules of Court; and refer the case motu proprio to the appropriate Barangay authority x x x ” (Administrative Circular No. 14-93, July 15,1993).


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The above circular was issued prior to the amendments of the Rules of Court and so the ground for dismissal was failure to state a cause of action (SC Administrative Circular No. 14- 93, July 15, 1993; Royales v. Intermediate Appellate Court, 127 SCRA 470; Gonzales v. Court of Appeals, 151 SCRA 289).

It is submitted that the proper ground to be invoked since July 1,1997, the date when the amendment to the Rules took effect, should be: “That a condition precedent for filing the claim has not been complied with” (Sec. lfj], Rule 16, Rules of Court).

7. It is well-settled that the non-referral of a case for barangay conciliation when so required under the law is not jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a motion to dismiss. Hence, a party who does not raise the defect seasonably can no longer raise the defense of non-compliance with the barangay conciliation proceedings to seek the dismissal of the complaint (Spouses Santos v. Spouses Lumbao, 519 SCRA 408, 422-423).

II. VENUE (Rule 4)

Meaning of venue Venue is the place, or the geographical area in which a court

with jurisdiction may hear and determine a case (Black’s, 5th Edition, 1396) or the place where a case is to be tried (20 Am Jur 2d, § 89,1965 Ed; Nocum v. Tan, 470 SCRA 639, 645).

Venue is not a matter of substantive law Venue is procedural and not substantive. In civil cases, venue

is not a matter of jurisdiction (Heirs of Pedro Lopez v. de Castro, 324 SCRA 591, 609). Venue becomes jurisdictional only in a criminal case. In the latter case, where the information is filed in a place where the offense was not committed, the information may be quashed for lack of jurisdiction over the offense charged (Sec. 3, Rule 117, Rules of Court). This is not so in a civil case where improper venue is not equivalent


to lack of jurisdiction. Because it is merely procedural, the parties can waive the venue of a case.

Basic venue analysis In order to know the venue of a particular action, the basic and

initial step is to determine if the action is personal or real. If it is personal, the venue is deemed transitory and thus, generally depends upon the residences of the parties. If it is real, the venue is local and thus, generally, the venue is the place where the property or where any portion of the same is situated.

Venue of personal actions (Bar 2011) 1.

he venue in personal actions is where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff (Sec. 2, Rule 4, Rules of Court).

If the defendant is a non-resident, the venue is where the plaintiff or any of the principal plaintiffs resides, or where the non-resident defendant may be found, at the election of the plaintiff (Sec. 2, Rule 4, Rules of Court).

2. Actions for damages and actions to collect a sum of money must be filed in either the residence of the plaintiff or the residence of the defendant at the election of the plaintiff. Such actions are personal actions. Hence, an action for the collection of PI million filed by a resident of Lingayen, Pangasinan against a resident of San Fernando, La Union, may be filed in either place at the option of the plaintiff (Bar 1998).

Venue of real actions (Bar 2009) 1. Actions affecting title to or possession of real property, or

interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated (Sec. 1, Rule 4, Rules of Court).


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The rule, in its simplified form means that if the action is real, the venue is local and refers to the place where the real property involved, or any portion thereof, is situated (Sec. 1, Rule 4, Rules of Court).

2. Actions to recover ownership of real property are real actions and must be filed in the place where the real property is located. Actions for unlawful detainer, forcible entry and accion publiciana are real actions and must be likewise filed in the place where the subject property is situated. Thus, an action to recover possession of the leased real property and for the payment of accrued rentals, must be filed in Davao City where the property is located because the action is a real action (Bar 1991; Bar 1987; Bar 2008).

Venue of actions for forcible entry and unlawful detainer Forcible entry and detainer actions shall be commenced and

tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated (Sec. 1, Rule 4, Rules of Court).

Venue of actions against non-residents affecting the personal status of the plaintiff; actions affecting property of the non-resident in the Philippines

1. The rule on venue under Sec. 3 of Rule 4 of the Rules of Court applies when the following concur:

a. any of the defendants is a non-resident and at the same time is not found in the Philippines;

b. the action affects the personal status of the plaintiff; or

c. the action affects any property of the nonresident defendant located in the Philippines.

2. The action in any of the above situations may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found (Sec. 3, Rule 4, Rules of Court).


3. Under Sec. 3 of Rule 4, if an action for partition of real property is filed by the plaintiff, a resident of Manila, naming his co-owner brothers, all residents of Los Angeles, California as defendants, and involving a property located in Makati City, the plaintiff has a choice of venue. He may commence and have the action tried either in Manila, the place where he resides or in Makati City, the place where the property is situated.

Under the same provision, where the plaintiff-husband, a resident of Manila files an action for annulment of his marriage to the defendant, a resident of Los Angeles, California, the action is to be commenced and tried in Manila, the residence of the plaintiff-husband. The action is one which affects the personal status of the plaintiff.

When the rules on venue do not apply The rules on venue are not applicable in any of the following

cases: a. In those cases where a specific rule or law provides

otherwise. Example: A quo warranto proceeding commenced

by the Solicitor General and filed, not in the Court of Appeals or the Supreme Court, is to be filed in the Regional Trial Court of Manila. The rule does not consider the residence of the respondent. (Sec. 7, Rule 66, Rules of Court).

b. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (Sec. 4, Rule 4, Rules of Court).

Stipulations on venue (Bar 1997; 2001) 1. The parties may agree on a specific venue which could be

in a place where neither of them resides (Universal Robina Corporation v. Lim, 535 SCRA 95, 99). The parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before the filing of the action, and (3) exclusive as to the venue (Sec. 4[b], Rule 4, Rules of Court).


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While the first two requisites rarely pose a problem, the third has been the source of controversy in the past.

2. A stipulation that “any suit arising from this contract shall be filed only in Quezon City” is exclusive in character and is clear enough as to preclude the filing of the action in any other place. In this case, the rule that the residences of the parties are to be considered in determining the venue of personal actions will not apply because of the restrictive tenor of the stipulated venue.

3. How about a stipulation that the “parties agree to sue and be sued in the courts of Manila?”

This was actually the stipulation in a suit subject of the landmark case of Polytrade Corporation v. Blanco (30 SCRA 187, 191). This stipulation was held not to be restrictive or exclusive to prevent the filing of the suit in the places provided for by the rules, i.e., in the residence of the plaintiff or of the defendant. According to the court, the plain meaning of the said provision is that the parties merely consented to be sued in the courts of Manila considering that there are no qualifying or restrictive words which would indicate that Manila, and Manila alone, is the agreed venue. It simply is permissive and the parties did not waive their right to pursue the remedy in the courts specifically mentioned in the Rules of Court.

4. Written stipulations as to venue, according to the Court, are either mandatory or permissive. In interpreting stipulations, inquiry must be made as to whether or not the agreement is restrictive in the sense that the suit may be filed only in the place agreed upon or merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules (Supena v. De la Rosa, 267 SCRA 1,11).

Where the venue stipulated upon is mandatory or restrictive, the complaint is to be filed only in the stipulated venue. Where the stipulated venue is merely permissive, the complaint may be filed in the place designated by the Rules or in the place stipulated. The latter place thus, becomes a


permissible venue in addition to those provided for by the Rules. The Court in one case clarified:

“The settled rule on stipulations regarding venue, as held by th[e] Court in the vintage case of Philippine Banking Corporation v. Tensuan, (230 SCRA 413, 420) is that while they are considered valid and enforceable, ven-ue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them” (Pa-cific Consultants v. Schonfeld, 516 SCRA 209, 229).

5. It must be reiterated and made clear that under Sec. 4(b) of Rule 4 of the Rules of Court, the general rules on venue of actions shall not apply where the parties, before the filing of the action, have validly agreed in writing on an exclusive venue. The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place (Spouses Lantin v. Lantion, 499 SCRA 718, 722).

Thus, if the plaintiff resides in Quezon City, the defendant resides in Makati City, and the agreed venue is Pasay City which, by the terms of the said agreement, is not exclusive, the venue of the action may be Quezon City, Makati City or Pasay City, at the election of the plaintiff.

6. The Polytrade doctrine was further applied in the case of Unimasters Conglomeration, Inc. v. Court of Appeals,


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267 SCRA 759, 776, 777, which analyzed the various jurisprudence rendered after the Poly trade case.

In Unimasters, it was ruled that a stipulation stating that the stipulation that “all suits arising out of this Agreement shall he filed with /in the proper Courts of Quezon City,” is only permissive and does not limit the venue to the Quezon City courts.

As the Court explained in the said case:

“In other words, unless the parties make very clear, by employing categorical and suitably limiting language, that they wish the venue of actions between them to be laid Only and exclusively at a definite place, and to dis-regard the prescriptions of Rule 4, agreements on venue are not to be regarded as mandatory or restrictive, but merely permissive, or complementary of said rule. The fact that in their agreement the parties specify only one of the venues mentioned in Rule 4, or fix a place for their actions different from those specified by said rule, does not, without more, suffice to characterize the agreement as a restrictive one. There must, to repeat, be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them, regardless of the general precepts of Rule 4; and any doubt or uncertainty as to the parties’ intentions must be resolved against giving their agreement a restrictive or mandatory aspect. Any other rule would permit of individual, subjective judicial interpretations without stable standards, which could well result in precedents in hopeless inconsistency.”

7. The following stipulations were likewise treated as merely permissive and did not limit the venue to the stipulated place:

a. “x x x The agreed venue for such action is Makati, Metro Manila, Philippines” (Mangila v. Court of Appeals, 387 SCRA 162, 174-175).

b. “In case of litigation hereunder, venue shall be in the City Court or Court of First Instance of


Manila as the case may be for determination of any and all questions arising thereunder” (Philippine Bank of Communications v. Trazo, 500 SCRA 242, 247-248).

c. “It is hereby agreed that in case of foreclosure of this mortgage under Act 3135, as amended, and Presidential Decree No. 385, the auction sale shall be held at the capital of the province, if the property is within the territorial jurisdiction of the province concerned, or shall be held in the city, if the property is within the territorial jurisdiction of the city concerned” (Langkaan Realty Development, Inc. v. United Coconut Planters Bank, 347 SCRA 542, 555-556).

d. “All court litigation procedures shall be conducted in the appropriate courts of Valenzuela City, Metro Manila” (Auction in Malinta, Inc. v. Luyaben, 515 SCRA 569, 575).

8. It is to be reiterated that the settled rule on stipulations regarding venue, is that while they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them.

Examples of words with restrictive meanings are: “only,” “solely ” “exclusively in this court,” “in no other court save “particularly,” “nowhere else but/except or words of equal import xxx (Pacific Consultants, International Asia, Inc. v. Schonfeld, 516 SCRA 209, 229).

Another example is: “In the event of suit arising out of or in connection with this mortgage and/or the promissory


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note/s secured by this mortgage, the parties hereto agree to bring their causes of action exclusively in the proper court of Makati, Metro Manila or at such other venue chosen by the Mortgagee, the Mortgagor waiving for this purpose any other venue” (Spouses Lantin v. Lantion, 499 SCRA 718, 723).

9. Cases like Hoechst, Inc. v. Torres, 83 SCRA 297, and Bautista v. De Borja, 18 SCRA 474 and other rulings contrary to the Polytrade doctrine must be deemed superseded by current decisions on venue.

In particular, the 1978 case of Hoechst Philippines, Inc. v. Torres, 83 SCRA 297, 301, involved the stipulation that “in case of any litigation arising out of this agreement, the venue of action shall be in the competent courts of the Province ofRizal.” The Supreme Court construed this agreement as sufficient to limit the venue to the proper court ofRizal and thus, exclusive in its import. However, in Supena v. De la Rosa, 267 SCRA 1, 14, it was ruled that Hoechst had been rendered obsolete by recent jurisprudence applying the doctrine enunciated in Polytrade (See also Auction in Malinta, Inc. v. Luyaben, 515 SCRA 569, 576).

Adopted Illustrations 1. Plaintiff resides in Manila. Defendant, resides in Quezon

City. The written contract stipulates that any suit arising from a violation of the contract “shall be filed only in Pasay City.” Plaintiff sues Defendant for damages arising from the alleged breach of the same contract. The action is filed in Quezon City. Is the venue improper? Answer: The venue is improper. The stipulation to file the action “only in Pasay City” is restrictive and therefore, has the effect of making Pasay City the sole venue of the action.

Assuming that the stipulation provides.. . “shall be filed in Pasay City,” without any restrictive language employed in the agreement. The action for breach of contract is filed in Quezon City. Is the venue improper? Answer: The venue is proper. The stipulation, “shall be filed in Pasay City” merely operates to add Pasay City to the regular venues of Manila and


Quezon City and does not preclude the filing of the action in either the residence of Plaintiff or the residence of Defendant, at the election of Plaintiff (Bar 1997).

2. Defendant, a resident of Angeles City, borrowed P300,000 from Plaintiff, a resident of Pasay City under an agreement that stipulated that the parties “agree to sue and be sued in the City of Manila.” Is Plaintiff precluded from filing the action either in Angeles City or Pasay City? Answer: He is not precluded. The stipulation on venue is not an exclusive stipulation and its effect is merely to add Manila as an additional venue. He may even file the action in Manila which became an added option by virtue of the stipulation.

The same conclusion would be reached had the stipulation been: “Venue for all suits arising from this contract shall be the courts in Quezon City.” The action may be filed also either in Angeles City or in Pasay City. It may also be filed in Quezon City (Bar 1997).

If the parties above failed to stipulate on the venue in the loan agreement, the action may be filed either in Angeles City or Pasay City at the election of the plaintiff. The venue of a personal action such as one to recover a debt under a loan of money is a personal action (Bar 1997).

Dismissal based on improper venue 1. A motu proprio dismissal based on improper venue is

plain error (Republic v. Glasgow Credit and Collection Services, Inc., 542 SCRA 95,101).

2. It was similarly ruled that a court may not dismiss an action motu proprio on the ground of improper venue as it is not one of the grounds wherein the court may dismiss an action motu proprio on the basis of the pleadings (Universal Corporation v. Lim, 535 SCRA 95, 99).

Another case expounds on the rule, thus:

“The court may only dismiss an action motu proprio in case of lack of jurisdiction over the subject matter, litis pendentia, res judicata and prescription. Therefore, the trial court in this case erred when it dismissed the peti


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tion motu proprio. It should have waited for a motion to dismiss or a responsive pleading from respondent, raising the objection or affirmative defense of improper venue, before dismissing the petition x x x ” (Rudolf Lietz Holdings, Inc. v. Registry of Deeds ofParanaque City, 344 SCRA 680, 684-685). 3. Unless and until the defendant objects to the venue in a

motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised. The trial court cannot preempt the defendant’s prerogative to object to the improper laying of the venue by motu proprio dismissing the case (Dacuy- coy v. Intermediate Appellate Court, 195 SCRA 641, 645-646). Hence, if in a case filed with the Regional Trial Court, the defendant files a motion to dismiss based on lack of jurisdiction over the subject matter and the court instead dismisses the action based on improper venue, the court would be acting erroneously because the act would tantamount to a motu pro-prio dismissal based on improper venue.

When court may make a motu proprio dismissal based on improper venue

The court may however, effect a motu proprio dismissal of the complaint based on improper venue in actions covered by the rules on summary procedure and in small claims cases. In these types of action, the court may motu proprio dismiss a case from an examination of the allegations of the complaint and such evidence as may be attached thereto on any of the grounds apparent therefrom for the dismissed of a civil action. The dismissal may be made outright, which means that the court may do so without need for waiting for the filing of a motion to dismiss (Sec. 4, Summary Procedure; Sec. 9, A.M. No. 08-8-7-SC).

Denial of a motion to dismiss based on improper venue; no appeal If a motion to dismiss based on improper venue is denied, may

the defendant appeal? He cannot. An order denying a


motion to dismiss is merely interlocutory. It is not final. Only final orders or judgments may be appealed from. The normal remedy is to file an answer and interpose the ground as an affirmative defense, go to trial and appeal from the adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop v. Court of Appeals, 353 SCRA 89, 92).

Improper venue is not jurisdictional; waiver of improper venue 1. If the facts of the problem show that the venue is

improper, it would not be correct to file a motion to dismiss anchored on lack of jurisdiction because venue has nothing to do with jurisdiction in a civil case. Hence, if a case for unlawful detainer is filed in MTC San Pablo City, Laguna when it should have been filed in MTC Cavite City because the property subject of the action is located in Cavite City, the action filed in San Pablo City, Laguna may be dismissed by the court on the ground of improper venue but not on the ground of lack of jurisdiction because every MTC has jurisdiction over cases of unlawful detainer. It would be a serious flaw to inject the concept of territorial jurisdiction in the analysis of the case. Jurisdiction over the territory is irrelevant in a civil case. Territorial jurisdiction applies only in criminal cases where venue is also jurisdictional. It is important to remember that in a civil case, the concept of venue is entirely distinct from the concept of jurisdiction.

2. It is elementary that objections to venue in civil actions arising from libel may be waived since they do not involve a question of jurisdiction. The laying of venue is procedural rather than substantive, relating as it does to jurisdiction of the court over the person rather than the subject matter. Venue relates to trial and not to jurisdiction. It is a procedural, not a jurisdictional, matter. It relates to the place of trial or geographical location in which an action or proceeding should be brought and not to the jurisdiction of the court. It is meant to provide convenience to the parties, rather


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than restrict their access to the courts as it relates to the place of trial. In contrast, in criminal actions, it is fundamental that venue is jurisdictional it being an essential element of jurisdiction (Nocum v. Tan, 470 SCRA 639, 648).

Venue distinguished from jurisdiction (Bar 2006) 1. Jurisprudence differentiates jurisdiction from venue as

follows: (a) Jurisdiction is the authority to hear and determine a

case; venue is the place where the case is to be heard or tried; (b) Jurisdiction is a matter of substantive law; venue, of

procedural law; (c) Jurisdiction establishes a relation between the court

and the subject matter; venue, a relation between plaintiff and defendant, or petitioner and respondent; and,

(d) Jurisdiction is fixed by law and cannot be conferred by the parties; venue may be conferred by the act or agreement of the parties (Nocum v. Tan, 470 SCRA 639, 645; See also 20 Am Jur, supra, §89). 2. Another case states:

“Venue is procedural, not jurisdictional, and hence may be waived. It is meant to provide convenience to the parties, rather than restrict their access to the courts as it relates to the place of trial” (Heirs of Lopez v. De Castro, 324 SCRA 591, 609).

3. The court may dismiss an action motu proprio in case of lack of jurisdiction over the subject matter but not for improper venue (Rudolf Lietz Holdings, Inc. v. Registry of Deeds ofParanaque City, 344 SCRA 680, 684-685).

4. Jurisdiction over the subject matter may be raised at any stage of the proceedings since it is conferred by law, although a party may be barred from raising it on the ground of estoppel (La’o v. Republic, 479 SCRA 439, 446).


The objection to an improper venue must be raised either in a motion to dismiss or in the answer because as a rule, under Sec. 1 of Rule 9, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. The defense of improper venue is not one of those defenses which are not waived when not raised in a motion to dismiss or in the answer.

-oOo-

Chapter III

ACTIONS, CAUSES OF ACTION, AND PARTIES

I. ACTIONS Definition

1. An action is the legal and formal demand of one’s right from another person made and insisted upon in a court of justice (Bouvier’s Law Dictionary, Vol. 1,128,8th Ed.; Words and Phrases, Vol. 2, 25).

2. In this jurisdiction, it is settled that the terms “action” and “suit” are synonymous but the determinative operative act which converts a claim into an “action” or “suit” is the filing of the same with a court of justice. Filed elsewhere, as with some body or office not a court of justice, the claim may not be properly be categorized under either term (Lopez v. Compania de Seguros, 16 SCRA 855, 859).

Civil actions and criminal actions 1. A civil action “is one by which a party sues another for the

enforcement or protection of a right, or the prevention or redress of a wrong” (Sec. 3[a], Rule 1, Rules of Court).

2. A criminal action “is one by which the State prosecutes a person for an act or omission punishable by law” (Sec. 3[b], Rule 1, Rules of Court).

3. It has been ruled that “. . . proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial...” (People v. Godoy, 243 SCRA 64, 78).

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Actions distinguished from special proceedings (Bar 1998; 1996)

1. The purpose of an action is either to protect a right or prevent or redress a wrong if the action is civil. If it is a criminal action the purpose is to prosecute a person for an act or an omission punishable by law (Sec. 3, Rule 1, Rules of Court).

2. The purpose of a special proceeding is to establish a status, a right, or a particular fact (Sec. 3, Rule 1, Rules of Court).

The special proceedings under the Rules of Court; application of rules in ordinary civil actions

1. The following are the special proceedings as they are currently enumerated in Sec. 1 of Rule 72 of the Rules of

Court

a. Settlement of estate of deceased persons;

b. Escheat; c. Guardianship and custody of children;

d. Trustees; e. Adoption;

f. Rescission and revocation of adoption; g- Hospitalization of insane persons; h. Habeas corpus; i. Change of name; j- Voluntary dissolution of corporations;

k. Judicial approval of voluntary recognition of minor natural children;

1. Constitution of family home; m. Declaration of absence of death; n. Cancellation or correction of entries in the civil registry.

CHAPTER III ACTIONS, CAUSES OF ACTION AND PARTIES

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2. The rules of ordinary civil actions have suppletory application in special proceedings. It is provided that: “In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings” (Sec. 2, Rule 72, Rules of Court).

Special civil actions in the Rules of Court The following are the special civil actions as presently

embodied in the Rules of Court:

a. Interpleader; b. Declaratory relief and similar remedies; c. Review of judgments and final orders or resolutions of the

Commission on Elections and the Commission on Audit; d. Certiorari, prohibition, and mandamus; e. Quo warranto; f. Expropriation; g. Foreclosure of real estate mortgage; h. Partition; i. Forcible entry and unlawful detainer; j. Contempt.

Real and personal actions (Bar 2006; 2004) 1. An action is ‘real’ when it affects title to or possession of

real property, or an interest therein (Sec. 1, Rule 4, Rules of Court). All other actions are personal actions (Sec. 2, Rule 4, Rules of Court; Bar 1994).

Examples: Actions for unlawful detainer, forcible entry, accion publiciana, accion reinvindicatoria, to quiet title or to remove a cloud on a title are real actions.

2. An action is real when it is founded upon the privity of real estate. That means that realty, or an interest therein is the subject matter of the action.


Not every action however, involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a ‘real’ action, it is not enough that the action must deal with real property. It is important that the matter in litigation must also involve any of the following issues: title to, ownership, possession, partition, foreclosure of mortgage, or any interest in real property.

Examples: An action for damages to real property, while involving realty is a personal action because although it involves real property, it does not involve any of the issues mentioned.

3. An action to recover possession of real property plus damages (like accion publiciana and damages) is fundamentally a real action because possession of the real property is involved. This is true even if the recovery of damages is, in itself, a personal action. The aspect of damages is merely an incidental part of the main action, i.e., recovery of possession of real property. Hence, in determining the venue of the action, the rule on venue in real actions shall be applied even if the recovery of damages is coupled with the recovery of possession of the realty. However, an action to recover possession of a personal property is a personal action.

4. An action for a declaration of the nullity of marriage is a personal action. As such, it may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where any of the principal defendants resides, at the election of the plaintiff (Tamano v. Ortiz, 291 SCRA 584, 588).

5. An action for specific performance with damages is a personal action as long as it does not involve a claim of or recovery of ownership of or title to real property (Siosoco v. Court of Appeals, 303 SCRA 186, 196 citing La Tondeha Distillers v. Ponferrada, 264 SCRA 540).

Where a complaint is denominated as one for specific performance but nonetheless prays for the issuance of a deed of sale for a parcel of land for the plaintiff to acquire ownership of the land, its primary objective and nature is one to recover the parcel of land itself and thus, is deemed a real action which

CHAPTER III 183 ACTIONS, CAUSES OF ACTION AND PARTIES

is one affecting title to or possession of real property (Gochan v. Gochan, 372 SCRA 256, 264).

If the action is denominated as one for specific performance, but the plaintiff actually seeks for the issuance of a deed of assignment in his favor of certain shares of stocks to regain ownership and possession of said shares, the action is not one for specific performance but a personal action for the recovery of property. The docket fee therefor, should be computed based on the value of the property and not based on the docket fee for specific performance (National Steel Corporation v. Court of Appeals, 302 SCRA 522, 529-530).

6. Where the allegations as well as the prayer of the complaint do not claim ownership of the lots in question or ask for possession of the same but instead merely seeks for the execution of a deed of sale by the defendants in favor of the plaintiff, the action is a personal action (Adamos v. J.M. Tuason & Co., Inc., 25 SCRA 529, 534).

7. Where it is alleged in the complaint that the defendant breached the contract, so that the plaintiff prays that the contract be rescinded and that the defendant be ordered to return possession of the hacienda to the plaintiff, the ultimate purpose or end of the action is to recover possession of real property and not a mere breach of contract (De Jesus v. Coloso, 1 SCRA 272,273-274).

8. Where the action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property, the action is real. The venue therefore of the action is where the real property subject of the action is situated. Hence, in Emergency Loan Pawnshop, Inc. v. Court of Appeals, 353 SCRA 89,91, the Court sustained the Court of Appeals in dismissing a complaint for annulment of sale of real property and damages filed in Davao City involving a property located in Baguio City, the place where the proper venue lies.

9. Where an award of a house and lot to the plaintiff was unilaterally cancelled, an action that seeks to annul the cancellation of the award over the said house and lot is a


personal action. The action does not involve title to, ownership, or possession of real property. The nature of the action is one to compel the recognition of the validity of the previous award by seeking a declaration that the cancellation is null and void (Hernandez v. Development Bank of the Philippines, 71 SCRA 290, 293; Bar 1976; Bar 1978).

10. An action to foreclose a real estate mortgage is a real action, but an action to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage is a personal action (Hernandez v. Rural Bank of Lucena, Inc., 81 SCRA 75, 84).

It has however, been held that an action praying that the defendant be ordered “to accept the payment being made” by plaintiff for the lot to which the latter contracted to buy on an installment basis from the former, to pay plaintiff compensatory damages and attorney’s fees and to enjoin the defendant and his agents from repossessing the lot in question, is one that affects title to land because although the immediate remedy is to compel defendant to accept the tender of payment allegedly made, it is obvious that this relief is merely the first step to establish plaintiffs title to real property. The action is real (Lizares v. Caluag, 4 SCRA 746, 748).

11. An action to annul a contract of loan and its accessory real estate mortgage is a personal action. In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract or the recovery of damages. In contrast, in a real action, the plaintiff seeks the recovery of real property, or, as indicated in Sec. 2(a), Rule 4 of the then Rules of Court, a real action is an action affecting title to real property, or for the recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on, real property (Chua v. Total Office Products and Services [Topros], Inc., 471 SCRA 500, 507).

12. Although the main relief sought in the action is the delivery of the certificate of title, said relief, in turn depends upon who, between the parties, has a better right to the lot in question. It is not possible for the court to decide the main relief without passing upon the claim of the parties with respect to


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the title to and the possession of the lot in question. The action is a real action (Espineli v. Santiago, 107 Phil. 830).

13. Where the sale is fictitious, with absolutely no con-sideration, it should be regarded as a non-existent contract. There being no contract between the parties, there is nothing in truth to annul by action. The action therefore, cannot be an action for annulment of a sale of a fishpond but one for the recovery of a fishpond, a real action (Pascual v. Pascual, 73 Phil. 561, 562).

Significance of the distinction between a personal and a real action

1. The distinction between a real action and a personal action is important for the purpose of determining the venue of the action. Questions involving the propriety or impropriety of a particular venue are resolved by initially determining the nature of the action, i.e., if the action is personal or real.

2. A real action is ‘local,’ i.e., its venue depends upon the location of the property involved in the litigation.

“Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated” (Sec. 1, Rule 4, Rules of Court; Italics supplied).

3. A personal action is ‘transitory,’ i.e., its venue depends upon the residence of the plaintiff or the defendant. A personal action “may be commenced and tried where the plaintiff or any of the principal plaintiffs resides or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff” (Sec. 2, Rule 4, Rules of Court; Italics supplied; Bar 1994).

4. If the question involves the venue of an action, the analysis will necessarily involve the following steps:

(a) a determination whether the action is real or personal; and


(b) an application of the rules on venue under Rule 4. Rules of Court. Thus, an action for a sum of money, instituted by a resident of

Manila against a resident of Quezon City, shall be filed either in Manila or Quezon City at the election of the plaintiff because the action is personal.

5. An action to annul a sale of a land located in Baguio City where recovery of ownership is essentially the material issue in the case, must be filed in Baguio City. The action is a real action and must be filed in the place where the property is situated regardless of the residence of the parties (Emergency Loan Pawnshop, Inc. v. Court of Appeals, 353 SCRA 89, 93).

6. An action for ejectment must be filed where the real property subject of the action is situated. It would not be correct to consider the residences of the parties because “forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated” (Sec. 1, Rule 4, Rules of Court).

7. An action for the recovery of possession of the leased premises located in Davao City and for the payment of accrued rentals is a real action. The venue of the action is Davao City (Bar 1991).

8. Where an award of a house and lot to the plaintiff was unilaterally cancelled, an action that seeks to annul the cancellation of the award over the said house and lot is a personal action. The action does not involve title to, ownership or possession of real property. The nature of the action is one to compel the recognition of the validity of the previous award by seeking a declaration that the cancellation is null and void. The venue is the residence of the plaintiff or that of the defendant at the option of the plaintiff (Hernandez v. Development Bank of the Philippines, 71 SCRA 290,293; Bar 1976; Bar 1978).

In personam and in rem actions (Bar 1994; 2009) 1. A proceeding in personam is a proceeding to enforce

personal rights and obligations brought against the person


and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose through the judgment of a court, some responsibility or liability directly upon the person of the defendant (Domagas v. Jensen, 448 SCRA 663, 673; Bar 1994). Examples: An action for a sum of money; an action for damages. In an action in personam, no one other than the defendant is sought to be held liable, not the whole world.

2. The earlier case of Gomez v. Court of Appeals, 425 SCRA 98, also explained that an action in personam is an action against a person on the basis of his personal liability, while an action in rem is an action against the thing itself, instead of against the person. Hence, a real action may at the same time be an action in personam and not necessarily an action in rem.

A more recent case explains the distinction, thus:

“The rule is that: (1) a judgment in rem is binding upon the whole world, such as a judgment in a land regis-tration case or probate of a will; and (2) a judgment in per-sonam is binding upon the parties and their successors- in-interest but not upon strangers. A judgment directing a party to deliver possession of a property to another is in personam', it is binding only against the parties and their successors-in-interest by title subsequent to the commencement of the action. An action for declaration of nullity of title and recovery of ownership of real property, or reconveyance, is a real action but it is an action in per-sonam, for it binds a particular individual only although it concerns the right to a tangible thing. Any judgment therein is binding only upon the parties properly implead-ed” (Munoz v. Yabut, Jr., G.R. No. 142676, June 6,2011).

The Court in Munoz v. Yabut, further explains:

“The settled rule is that the aim and object of an action determine its character. Whether a proceeding is


in rem, or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only. A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam. is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant. Of this character are suits to compel a defendant to specifically perform some act or actions to fasten a pecuniary liability on him. An action in personam is said to be one which has for its object a judgment against the person, as distinguished from a judgment against the property to determine its state. It has been held that an action in personam is a proceeding to enforce personal rights or obligations; such action is brought against the person. As far as suits for injunctive relief are concerned, it is well-settled that it is an injunctive act in personam. In Combs v. Combs, the appellate court held that proceedings to enforce personal rights and obligations and in which personal judgments are rendered adjusting the rights and obligations between the affected parties is in personam. Actions for recovery of real property are in personam

3. Traditional jurisprudence has referred to an action in rem as one brought against the whole world (Romualdez- Licaros v. Licaros, 401 SCRA 762, 770).

4. An action in personam is not necessarily a personal action. Nor is a real action necessarily an action in rem.

An in personam or an in rem action is a classification of actions according to the object of the action. A personal and real action is a classification according to foundation. It is in rem when directed against the whole world and in personam when directed to a particular person (Bar 1994).


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For instance, an action to recover, title to or possession of real property is a real action, but it is an action in personam. It is not brought against the whole world but against the person upon whom the claim is made.

Hence, an action to recover a parcel of land is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing (Republic v. Court of Appeals, 315 SCRA 600, 606).

5. When an action is real because it affects title to or possession of land, it does not automatically follow that the action is already in rem (Gomez v. Court of Appeals, 425 SCRA 98,105).

An action for ejectment (forcible entry or unlawful detainer) is a real action because it involves the issue of possession of real property (Sec. 1, Rule 4, Rules of Court). It is also however, an action in personam because the action is directed against a particular person who is sought to be held liable (See also Domagas v. Jensen, 448 SCRA 663, 676).

A later case reiterates that an action for unlawful detainer or forcible entry is a real action and in personam because the plaintiff seeks to enforce a personal obligation on the defendant for the latter to vacate the property subject of the action, restore physical possession thereof to the plaintiff, and pay actual damages by way of reasonable compensation for his use or occupation of the property (Afdal v. Carlos, 636 SCRA 389, 396, December 1, 2010).

6. An action for the declaration of nullity of a marriage is a personal action (Tamano v. Ortiz, 291 SCRA 584, 588; Romualdez-Licaros v. Licaros, 401 SCRA 762, 765) because it is not founded on real estate. It is also an in rem action because the issue of the status of a person is one directed against the whole world. One’s status is a matter that can be set up against anyone in the world.

On the other hand, an action for damages is both a personal action and an action in personam.


7. An action for specific performance is an action in personam (Jose v. Boyon, 414 SCRA 216, 225). It is not an action in rem (Gomez v. Court of Appeals, 425 SCRA 98, 105; Bar 1997; 2003).

8. A proceeding as to the probate of a will is essentially one in rem (In Re Estate of Johnson, 39 Phil. 156,162). Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the court’s jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent (Alaban v. Court of Appeals, 470 SCRA 697, 706).

9. A land registration proceeding is an action in rem. Hence, the failure to give a personal notice to the owners or claimants of the land is not a jurisdictional defect. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction (Adez Realty, Inc. v. Court of Appeals, 212 SCRA 623, 628; Ting v. Heirs of Diego Lirio, 518 SCRA 334, 338).

10. Cases involving an auction sale of land for the collection of delinquent taxes is an action in personam. Mere publication of the notice of delinquency does not suffice. Notice by publication although sufficient in proceedings in rem does not satisfy the requirements of proceedings in personam. Because it is in personam, it is still necessary to send the notice of tax delinquency directly to the taxpayer in order to protect the interests of the latter (Talusan v. Tayag, 356 SCRA 263, 276).

11. An action for reconveyance is an action in personam available to a person whose property has been wrongfully registered under the Torrens system in another’s name. Although the decree is recognized as incontrovertible and no longer open to review, the registered owner is not necessarily held free from liens. As a remedy, an action for reconveyance is filed as an ordinary action in the ordinary courts of justice and not with the land registration court. Reconveyance is always available as long as the property has not passed to an innocent third person for value. A notice of lis pendens may thus be annotated on the certificate of title immediately upon


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the institution of the action in court. The notice of lis pendens will avoid transfer to an innocent third person for value and preserve the claim of the real owner (Munoz v. Yabut, Jr., G.R. No. 142676, June 6, 2011 citing Heirs of Eugenio Lopez, Sr. v. Enriquez, 449 SCRA 173).

12. The rule is that: (1) a judgment in rem is binding upon the whole world, such as a judgment in a land registration case or probate of a will; and (2) a judgment in personam is binding upon the parties and their successors-in-interest but not upon strangers. A judgment directing a party to deliver possession of a property to another is in personam; it is binding only against the parties and their successors-in-interest by title subsequent to the commencement of the action. An action for declaration of nullity of title and recovery of ownership of real property, or reconveyance, is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing. Any judgment therein is binding only upon the parties properly impleaded (Munoz v. Yabut, Jr., G.R. No. 142676, June 6, 2011).

13. An action for injunction is a personal action as well as an action in personam, not an action in rem or quasi in rem (Kawasaki Port Service Corporation v. Amores, 199 SCRA 230,237). Munoz v. Yabut, Jr., G.R. No. 142676, June 6,2011 also ruled that a suit for injunction, partakes of an action in personam.

Quasi in rem actions 1. An action quasi in rem is one wherein an individual is

named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 552).

2. The object of an action quasi in rem is the sale or disposition of the property whether by attachment, foreclosure or any other form of remedy (Banco Espafiol-Filipino v. Palanca, 37 Phil. 921, 928). A proceeding quasi in rem is one brought against persons seeking to subject the property of such


persons to the discharge of the claims assailed. In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants (Domagas v. Jensen, 448 SCRA 663, 674; Bar 1994).

3. Examples of actions quasi in rem: (a) action for partition; (b) action for accounting. Such actions are essentially for the purpose of affecting the defendant’s interest in the property and not to render a judgment against him (Valmonte v. Court of Appeals, 252 SCRA 92, 101-102); (c) attachment; (d) foreclosure of mortgage (Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 928; Sahagun v. Court of Appeals, 198 SCRA 44, 53).

4. In another case, the Court similarly held that attachment and foreclosure proceedings are both actions quasi in rem. As such, jurisdiction over the person of the nonresident defendant is not essential. Service of summons on a non-resident defendant who is not found in the country is required, not for the purpose of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he may be informed of the pendency of the action against him and the possibility that property belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, should he be so minded (Biaco v. Philippine Countryside Rural Bank, 515 SCRA 106,118).

Significance of distinction between actions in rem, in personam and quasi in rem

1. The distinction is important to determine whether or not jurisdiction over the person of the defendant is required


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and consequently to determine the type of summons to be employed. Gomez v. Court of Appeals, 425 SCRA 98,103, is clear on the

matter:

“To resolve whether there was valid service of summons on respondents, the nature of the action filed against them must first be determined. As the Court explained x x x it will be helpful to determine first whether the action is in personam, in rem, or quasi in rem because the rules on service of summons under Rule 14 of the Rules of Court of the Philippines apply according to the nature of the action.”

Jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case against said defendant where the action is one in personam but not where the action is in rem or quasi in rem. (Biaco v. Philippine Countryside Rural Bank, 515 SCRA 106, 115; See also Afdal v. Carlos, 636 SCRA 389, 396, December 1, 2010).

Against a resident defendant in an action in personam, this jurisdiction is acquired by service in person on the defendant (Sec. 6, Rule 14, Rules of Court) or in case he cannot be served in person within a reasonable time, by substituted service of summons (Sec. 7, Rule 14, Rules of Court). Without a valid service of the summons the court cannot obtain jurisdiction over the person of the defendant unless the defendant voluntarily appears in the action. This voluntary appearance is equivalent to service of summons (Sec. 20, Rule 14, Rules of Court).

The case of Afdal v. Carlos, 636 SCRA 389,396, December 1, 2010 confirms the above rule, thus:

“ x x x Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary appearance in court. If the defendant does not voluntarily appear in court, jurisdiction can be acquired by personal or substituted service of summons as laid out under Sections 6 and 7 of Rule 14 of the Rules of Court.”


2. “In an action in personam against a non-resident who does not voluntarily submit himself to the authority of the court, personal service within the state is essential to the acquisition of jurisdiction over his person. This method is possible if such defendant is physically present in the country. If he is not found therein, the court cannot acquire jurisdiction over his person and therefore, cannot validly try the case against him” (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 554). Following the ruling in Asiavest, because an action for specific performance is in personam, service of summons upon him in person while he is within the territory is essential for the court to acquire jurisdiction over him. In an action for specific performance against a non-resident who does not reside in the Philippines, summons by publication will not enable the court to acquire jurisdiction over him (Gomez v. CA, 425 SCRA 98,106).

3. The Supreme Court sums up the basic rules on the matter, in the following words, thus:

“The question of whether the trial court has juris-diction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. The rules on service of summons under Rule 14 of the Rules of Court likewise apply according to the nature of the action.

An action in personam is an action against a person on the basis of his personal liability. An action in rem is an action against the thing itself instead of against the person. An action quasi in rem is one wherein an indi-vidual is named as defendant and the purpose of the pro-ceeding is to subject his interest therein to the obligation or lien burdening the property.

In an action in personam, jurisdiction over the per-son of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem. jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Jurisdic-tion over the res is acquired either (1) by the seizure of the property under legal process, whereby it is brought into


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actual custody of the law; or (2) as a result of the institu-tion of legal proceedings, in which the power of the court is recognized and made effective.

Nonetheless, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process re-quirements.

A resident defendant who does not voluntarily ap-pear in court, must be personally served with summons as provided under Sec. 6, Rule 14 of the Rules of Court. If she cannot be personally served with summons within a reasonable time, substituted service may be effected (1) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (2) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof in accordance with Sec. 7, Rule 14 of the Rules of Court (Biaco v. Philippine Countryside Rural Bank, 515 SCRA 106; Underscoring ours).

When summons by publication may be made in an action in personam

Summons by publication, as far as existing jurisprudence is concerned, will not enable the court to acquire jurisdiction over the person of the defendant (Pantaleon v. Asuncion, 105 Phil. 761, 765; See also Citizens Surety & Insurance Co., Inc. v. Melencio-Herrera, 38 SCRA 369; Magdalena Estate v. Nieto, 125 SCRA 758, Consolidated Plywood v. Breva, 166 SCRA 589). This jurisprudential rule is however, subject to the exceptions laid down under the amended rules which took effect on July 1,1997.

(a) In Sec. 14 of Rule 14, if the identity of the defendant is unknown or whose whereabouts are unknown, service may, with leave of court, be effected upon him by publication in a newspaper of general circulation. Note the words, “in any action” in Sec. 14 of Rule 14 (Sec. 14, Rule 14, Rules of Court; Santos v. PNOC Exploration Corporation, 566 SCRA 272, 278).


(a) In Sec. 16 of Rule 14, if the resident defendant is temporarily out of the country, he may be served by publication with leave of court.

While the phrase, “summons by publication,” does not appear in Sec. 16 the way it expressly appears in Sec. 14, the rule makes reference to Sec. 15 of Rule 14 which allows summons by publication. Note also the words, “any action” in Sec. 16 of Rule 14 making the rule applicable even to actions in personam (Sec. 16, Rule 14 in relation to Sec. 15, Rule 14, Rules of Court; Suggested reading: Asiavest Limited v. Court of Appeals, 296 SCRA 539); and

II. CAUSE OF ACTION (Rule 2)

Meaning 1. A cause of action is the act or omission by which a party

violates the rights of another (Sec. 2, Rule 2, Rules of Court; Philippine National Construction Corporation v. Court of Appeals, 514 SCRA 569, 576; Virra Mall Tenants Association, Inc. v. Virra Mall Greenhills Association, Inc., G.R. No. 182902, October 5, 2011).

2. It has also been referred to as “the fact or combination of facts which affords a party a right to judicial interference in his behalf’ (Philippine National Bank v. Court of Appeals, 514 SCRA 569, 582 citing Navoa v. Court of Appeals, 251 SCRA 545).

When cause of action is required Sec. 1, Rule 2 of the Rules of Court requires that every

ordinary civil action must be based on a cause of action (Turner v. Lorenzo Shipping Corporation, 636 SCRA 13, 30, November 24, 2010).

Note that the rule makes no reference to a special civil action.


Elements of a cause of action 1. The elements of a cause of action are as follows:

(a) A right in favor of the plaintiff by whatever means and under whatever law it arises or is created;

(b) An obligation on the part of the named defendant to respect or not to violate such right; and

(c) Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief (Manaloto v. Veloso III, G.R. No. 171365, October 6, 2010; Virra Mall Tenants Association, Inc., v. Virra Mall Greenhills Association, Inc., G.R. No. 182902, October 5, 2011). 2. Although the first two elements may exist, a cause of

action arises only upon the occurrence of the last element, giving the plaintiff the right to maintain an action in court for recovery of damages or other appropriate relief (Turner v. Lorenzo Shipping Corporation, 636 SCRA 13, 30, November 24, 2010).

3. Even an existing right, though by itself legal may nevertheless become the source of liability and may result in the violation of another person’s right as when in the exercise of a right or in the performance of a duty, one does not act with justice, does not give another his due or does not observe honesty and good faith (Art. 19, Civil Code of the Philippines; Manzanal v. Ilusorio, 636 SCRA 563, 570, December 6, 2010).

Cause of action as applied to administrative cases While the concept of a cause of action is one that is essential to

the existence of a civil action, in administrative cases however, the issue is not whether the complainant has a cause of action against the respondent, but whether the respondent has breached the norms and standards of the office (Mutia v. Pacariem, 494 SCRA 448, 453).


Cause of action based on contracts 1. Does a cause of action for breach of contract require an

allegation and proof of the negligence of the defendant? Jurisprudence consistently answers in the negative.

A cause of action based on breach of contract merely requires the following elements: (a) the existence of a contract, and (b) the breach of the contract.

In breach of contract of carriage for instance, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor failed to transport the passenger safely to his destination (Calalas v. Court of Appeals, 332 SCRA 356, 361; FGU Insurance Corporation v. G.P. Sarmiento Trucking Corporation, 386 SCRA 312, 320). In other words, the mere proof of the existence of the contract and the failure of its compliance justify, prima facie, a corresponding right of relief (Guanio v. Makati Shangri-La Hotel and Resort, Inc., 641 SCRA 591, 596, February 7, 2011; Bar 2004).

Thus, if a carrier is sued based on a breach of contract of carriage, negligence need not be proved by the plaintiff, negligence not being an element of the cause of action of a suit predicated upon a breach of contract of carriage. This is true whether or not the defendant is a public or a private carrier. However, where the defendant is a common carrier there is an additional reason for dispensing with proof of negligence, i.e., negligence of the common carrier is presumed (Art. 1735 and Art. 1756, Civil Code of the Philippines).

Cause of action based on the vicarious liability of an employer 1. As a rule, negligence as an element of a quasidelict must

be alleged and proved (Art. 2176, Civil Code of the Philippines) but the negligence of those persons described under Art. 2180 of the Civil Code, although based on a quasidelict, is presumed.

2. Under Art. 2180 of the Civil Code, following the well-recognized doctrine of vicarious liability, certain persons


like the father, mother, guardian, owners and managers of an establishment or enterprise, employers, the State, and teachers or heads of establishments of arts and trades are, under specified conditions, liable for the acts of persons for whom they are responsible.

Thus, an employer for instance, is liable for the damage caused by his employees and household helpers acting within the scope of their assigned tasks. The employer’s negligence in the selection and supervision of his employee is presumed and his liability shall only cease if he successfully proves his observance of the diligence required of a good father of a family to prevent damage.

Thus, it has been ruled that when an injury is caused to another by the negligence of the employee there instantly arises the juris tantum presumption of law that there was negligence on the part of the employer either in the selection or in the supervision, or both of the employee. The liability of the employer is direct and immediate and is not conditioned upon a prior recourse against the negligent employee and a prior showing of the insolvency of such employee. Therefore, it is incumbent upon the employer to prove his exercise of diligence of a good father of a family in the selection and supervision of the employee (Manliclic v. Calaunan, 512 SCRA 642, 662-553).

3. The above principle was emphasized in a more recent ruling, thus:

“ x x x Whenever an employee’s negligence causes damage or injury to another, there instantly arises a pre-sumption juris tantum that the employer failed to exer-cise diligentissimi patris families in the selection or su-pervision of his employee” (The Heirs of Reinoso, Sr. v. Court of Appeals, G.R. No. 116121, July 18, 2011).

Cause of action for a sum of money based on a promissory note 1. Where the cause of action rests on a promissory note,

filing the action before the due date of the obligation


would be premature because the obligation is one with a period. Whenever a period is designated in an obligation, the obligation becomes demandable only when the period arrives. Such period is presumed to be for the benefit of both parties and of course, also of the debtor. He cannot be charged before the due date (Art. 1196, Civil Code of the Philippines) unless he loses the right to make use of the period (Art. 1198, Civil Code of the Philippines; Bar 1999).

2. A cause of action for a sum of money based on a prom-issory note requires an allegation that a debt exists. Since the note is the basis of the suit, the note is deemed an actionable document under Sec. 7 of Rule 8 of the Rules of Court. Hence, the note must be properly pleaded in accordance with the said rule by setting forth in the pleading the substance of such note and attaching to the pleading the original or copy thereof. The complaint must likewise allege that the debt is due and that no payment was made despite a demand to fulfill the obligation. Under Art. 1169 of the Civil Code of the Philippines, the debtor does not incur in delay without the requisite demand.

Cause of action for unlawful detainer 1. In an unlawful detainer case, the cause of action does not

accrue unless there is a demand to vacate and is not complied with. If however, the suit is based on expiration of the lease, notice and demand are not required (Labastida v. Court of Appeals, 287 SCRA 662, 671).

2. If the unlawful detainer case is based on the alleged violation of the terms and conditions of the lease agreement or failure to pay the rentals, the demand should not be “to pay or vacate” but should be to pay and vacate (Sec. 2, Rule 70, Rules of Court). The first type of demand does not give rise to an unlawful detainer case since it is in essence an action for a sum of money. So if the amount of rentals to be collected is P900,000.00, the action should be filed with the Regional Trial Court which has jurisdiction over the amount demanded. On the other hand, if the demand is “to pay and vacate,” the cause of action is one for unlawful detainer and should be filed in the Municipal Trial Court. Thus, even if the complaint is


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captioned, “Collection of a Sum of Money with Damages,” the action is actually for ejectment or unlawful detainer where the demand is “to pay and to vacate” (Suggested reading: Barrazona v. RTC of Baguio, 486 SCRA 555, 561; Bar 2011).

3. imilarly, if the unlawful detainer case is anchored upon the failure of the defendant to comply with the conditions of the lease, the demand must not be “to comply... or vacate” but should be “to comply. . . and vacate.” The first type of demand is not one for unlawful detainer but one for specific performance.

Sec. 2 of Rule 70 (Forcible Entry and Unlawful Detainer) declares:

“Sec. 2 . . . . Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease AND to vacate is made upon the lessee . .(emphasis ours).

4. As to the cause of action for unlawful detainer, guidance may be had from the case of De los Reyes v. Spouses Odones, 646 SCRA 328,334, G.R. No. 178096, March 23,2011.

“Unlawful detainer is an action to recover possession of real property from one who illegally withholds pos-session after the expiration or termination of his right to hold possession under any contract, express or implied. The possession by the defendant in unlawful detainer is originally legal but became illegal due to the expiration or termination of the right to possess. The proceeding is summary in nature, jurisdiction over which lies with the proper MTC or Metropolitan Trial Court. The action must be brought up within one year from the date of last demand, and the issue in the case must be the right to physical possession.”

As explained in the same case, a complaint sufficiently alleges a cause of action for unlawful detainer if it recites the following:

1. initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff;


2. eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latter’s right of possession;

3. thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof; and

4. within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment (De los Reyes v. Spouses Odones, supra at 334). The Court in De los Reyes adds:

“The requirement that the complaint should aver, as jurisdictional facts, when and how entry into the property was made by the defendants applies only when the issue is the timeliness of the filing of the complaint before the MTC, and not when the jurisdiction of the MTC is assailed because the case is one for accion publiciana cognizable by the RTC. This is because, in forcible entry cases, the prescriptive period is counted from the date of defendants’ actual entiy into the property; whereas, in unlawful detainer cases, it is counted from the date of the last demand to vacate. Hence, to determine whether the case was filed on time, there is a necessity to ascertain whether the complaint is one for forcible entry or for un-lawful detainer; and since the main distinction between the two actions is when and how defendant entered the property, the determinative facts should be alleged in the complaint” (De los Reyes v. Odones, supra at 335-336).

Cause of action for forcible entry 1. In forcible entry, the possession of the defendant is illegal

from the very beginning having deprived the actual possessor of his possession by force, intimidation, threat, strategy or stealth (Sec. 1, Rule 70, Rules of Court). It is the nature of defendant’s entry into the land which determines the cause of action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder is forcible entry. If, however, the


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entry is legal but the possession thereafter becomes illegal, the case is unlawful detainer.

2. In forcible entry, the plaintiff must allege in the complaint, and prove, that he was in prior physical possession of the property in dispute until he was deprived thereof by the defendant by any of the means provided in Sec. 1, Rule 70 of the Rules either by force, intimidation, threat, strategy, or stealth (Sarmienta v. Manalite Homeowners Association, Inc., 632 SCRA 538, 546, G.R. No. 182953, October 11, 2010). The above allegations are not required in an unlawful detainer case.

Instead, in unlawful detainer, there must be an allegation in the complaint of how the possession of defendant started or continued, that is, by virtue of lease or any contract, and that defendant holds possession of the land or building after the expiration or termination of the right to hold possession by virtue of any contract, express or implied (Sarmienta v. Manalite Homeowners Association, Inc., 632 SCRA 538, 547, G.R. No. 182953, October 11, 2010).

3. Rule 70 of the Rules of Court does not require a demand to vacate in a forcible entry case. The demand referred to in Sec. 2 of Rule 70 pertains to a demand to be made by a lessor or by one under some other contract. Remember that in forcible entry the occupancy of the premises by the defendant is illegal from the very beginning.

In unlawful detainer, demand to vacate is necessary as a rule and within one year from the last demand on defendant to vacate the property, the plaintiff may institute the complaint for ejectment (Romullo v. Samahang Magkakapitbahay ng Bayanihan Compound Homeowner's Association, Inc., 632 SCRA 411, 419, G.R. No. 180687, October 6,2010).

Cause of action for malicious prosecution For a malicious prosecution suit to prosper, the plaintiff must

prove the following: (1) the prosecution did occur, and the defendant


was himself the prosecutor or that he instigated its com-mencement;

(2) the criminal action finally ended with an acquittal;

(3) in bringing the action, the prosecutor acted without probable cause; and

(4) the prosecution was impelled by legal malice — an improper or a sinister motive. The gravamen of malicious prosecution is not the filing of a complaint based on the wrong provision of law, but the deliberate initiation of an action with the knowledge that the charges were false and groundless (Magbanua v. Junsay, 515 SCRA 419, 436-437).

Cause of Action in environmental cases In environmental cases, the complaint shall state that it is an

environmental case, and the law involved (Sec. 3, Rule 2, Part 2, Rules of Procedure for Environmental Cases)

Action distinguished from cause of action (Bar 1999) An action is the suit filed in court for the enforcement or

protection of a right, or the prevention or redress of a wrong (Sec. 3[a], Rule 2, Rules of Court). A cause of action is the basis of the action filed. Under the Rules of Court “every ordinary civil action must be based on a cause of action” (Sec. 1, Rule 2, Rules of Court).

Failure to state a cause of action (pleading asserting the claim states no cause of action)

1. The mere existence of a cause of action is not sufficient for a complaint to prosper. Even if in reality the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the complaint or the pleading asserting the claim “states no cause of action” (Sec. l[g], Rule 16). This means that the cause of action must unmistakably be stated or alleged in the complaint or that all the elements of the


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cause of action required by substantive law must clearly appear from the mere reading of the complaint. To avoid a possible early dismissal of the complaint, the simple dictum to be followed is: “If you have a cause of action, then by all means, state it! State all of its elements in your pleading!”

2. Where there is a defect or an insufficiency in the statement of the cause of action, a complaint may be dismissed not because of an absence or a lack of a cause of action but because the complaint “states no cause of action” (Sec. l[g], Rule 16, Rules of Court). Stated otherwise, the dismissal will therefore, be anchored on a “failure to state a cause of action.”

3. It is submitted that the failure to state a cause of action does not mean that the plaintiff has “no cause of action.” It only means that the plaintiffs allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. Thus, even if indeed the plaintiff suffered injury, if the same is not set forth in the complaint, the pleading will state no cause of action even if factually or in reality the plaintiff has a cause of action against the defendant.

Test to determine when pleading asserting the claim states no cause of action

When the defending party files a motion to dismiss on the ground that the complaint states no cause of action, what test shall be applied by the Court?

It has been held that whether or not the ground for dismissal exists “can be determined only from the facts alleged in the complaint and from no other, and the court cannot consider other matters aliunde. The test, therefore, is whether, assuming that the allegations of fact in the complaint to be true, a valid judgment could be rendered in accordance with the prayer stated therein” (Manaloto v. Veloso III, 632 SCRA 347, 362, G.R. No. 171365, October 6, 2010). This means that matters outside the pleading are not to be considered in granting or denying the motion to dismiss.


Effect of a finding that the complaint states a cause of action “x x x A finding that the complaint sufficiently states a cause of

action does not necessarily mean that the complaint is meritorious; it shall only result in the reinstatement of the complaint and the hearing of the case for presentation of evidence by the parties” (Manaloto v. Veloso III, 632 SCRA 347, G.R. No. 171365, October 6, 2010). In other words, when the court finds that the complaint states a cause of action, this means that the same cannot be dismissed for failure to state a cause of action but the claiming party has the obligation to offer evidence to support the allegations constituting the elements of his cause of action.

Failure to state a cause of action and lack of a cause of action; failure to establish a cause of action

1. A fair reading of jurisprudence likewise shows that a failure to state a cause of action is not the same as an absence or a lack of a cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence one’s stated cause of action.

Under Rule 16, the ground for dismissal in relation to a cause of action is not “lack or absence of a cause of action.” The ground is that “the pleading asserting the claim states no cause of action (Sec. l[g], Rule 16; San Lorenzo Village Association, Inc. v. Court of Appeals, 288 SCRA 115, 126). This ground points merely to a ‘failure to state a cause of action’ and not to a lack or absence of a cause of action.’

2. The ground for dismissal based on the fact that the pleading asserting the claim states no cause of action is different from the ground that the case of the claimant should be dismissed for lack of a cause of action. The first is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be determined only from the allegations of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the


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basis of the evidence he has presented in support of his claim (Enojas v. COMELEC, 283 SCRA 229, 238; Manila Banking Corporation v. University of Baguio, Inc., 516 SCRA 379-380).

The case of Dabuco v. Court of Appeals, 322 SCRA 853, 857, is instructive:

“As a preliminary matter, [th]e [Court] wish[es] to stress the distinction between the two grounds for dis-missal of an action: failure to state a cause of action, on the one hand, and lack of cause of action, on the other hand. The former refers to the insufficiency of allegation in the pleading, the latter to the insufficiency of factual basis for the action. Failure to state a cause may be raised in a Motion to Dismiss under Rule 16, while lack of cause of action may be raised any time. Dismissal for failure to state a cause of action can be made at the earliest stages of an action. Dismissal for lack of cause of action is usually made after questions of fact have been resolved on the basis of stipulations, admissions or evidence presented.” The later case oiDomondon v. Lopez, 383 SCRA 376,385, 385,

ratiocinates on the same subject, thus:

“It is apparent that respondent judge failed to dis-tinguish between a motion to dismiss for failure of the complaint to state a cause of action and a motion to dis-miss based on lack of cause of action. The first is governed by Rule 16, §l(g), while the second by Rule 33 of the 1997 Revised Rules of Civil Procedure. The distinction between these two has been explained thus:

... The first [situation where the complaint does not allege a sufficient cause of action] is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be determined only from the allegations in the initiatory pleading and not from evidentiary or other matters aliunde. The second [situation where the evidence does not sustain the cause of action alleged] is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim. The first does not concern itself with the truth and falsity of the allegations while the second arises precisely


because the judge has determined the truth and falsity of the allegations and has found the evidence wanting^ (Citing China Road and Bridge Corp. v. Court of Appeals, 348 SCRA 401, 412).

3. Much later, the Court found the occasion to emphasize once more that a motion to dismiss based on lack of cause of action is filed by the defendant after the plaintiff has presented his evidence on the ground that the latter has shown no right to the relief sought. While a motion to dismiss under Rule 16 is based on preliminary objections which can be ventilated before the beginning of the trial, a motion to dismiss under Rule 33 is in the nature of a demurrer to evidence on the ground of insufficiency of evidence and is presented only after the plaintiff has rested his case (People v. Juan Tuvera, 516 SCRA 113,131-132).

4. There is a failure to state a cause of action if the allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. For instance, if in an action for a sum of money arising from a loan, the plaintiff fails to allege that the debt is due and demandable, the complaint asserting the claim fails to state a cause of action even if the plain truth is that the plaintiff has a cause of action for collection of the debt. Also, even if in truth he has a cause of action for forcible entry, if the plaintiff in his complaint fails to allege an essential element of a forcible entry case, as for instance, the fact that he was, in actual prior physical possession of the property before he was deprived of his possession, there is a failure to state a cause of action.

Thus, in actions for forcible entry, three (3) requisites have to be alleged for the municipal trial court to acquire jurisdiction over the case. First, the plaintiff must allege his prior physical possession of the land or building. Second, he must also assert that he was deprived of possession of the property either by force, intimidation, threat, strategy, or stealth. Third, the action must be filed within one (1) year from the time he learned of his deprivation of physical possession of the property (De la Cruz v. Court of Appeals, 510 SCRA 103,115).


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The other kind of ejectment proceeding is unlawful detainer (desahucio), where one unlawfully withholds possession of the subject property after the expiration or termination of the right to possess. Here, the issue of rightful possession is the one decisive; for in such action, the defendant is the party in actual possession and the plaintiffs cause of action is the termination of the defendant’s right to continue in possession (De la Cruz v. Court of Appeals, 510 SCRA 103,115,116).

As earlier mentioned, so that there would be no failure to state a cause of action in a complaint for unlawful detainer, the following essential requisites must appear in the complaint: (1) the fact of lease by virtue of a contract express or implied; (2) the expiration or termination of the possessor’s right to hold possession; (3) withholding by the lessee of the possession of the land or building after expiration or termination of the right to possession; (4) demand upon lessee to pay the rental or comply with the terms of the lease and vacate the premises; and (5) the action must be filed within one (1) year from date of last demand received by the defendant (De la Cruz v. Court of Appeals, 510 SCRA 103,115,116).

5. It has been also held that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted to the court for determination is the sufficiency of the allegations in the complaint, and to determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no other should be considered (Misamis Occidental II Cooperative, Inc. v. David, 468 SCRA 63, 71).

Failure to establish a cause of action The Court had also used the terms “failure to establish a cause

of action” vis-a-vis the term “failure to state a cause of action.” The latter has been used with reference to the insufficiency in the allegations of the pleading, i.e., not all the elements of a particular cause of action are alleged. The former has been used in connection with the factual basis of the cause of action.


If there is a sufficiency of the allegations in the pleading but the evidence presented do not prove the cause of action, then there is a “failure to establish a cause of action.” Usually, the declaration that a plaintiff failed to establish a cause of action is postponed until after the parties are given the opportunity to present all relevant evidence on questions of fact. Hence, it would not be correct for the trial court to dismiss a complaint on the ground of “failure to establish its cause of action” without giving the parties an opportunity to present their evidence (Luzon Development Bank v. Conquilla, 470 SCRA 533, 546-547).

Test of the sufficiency of the statement of a cause of action 1. The test of the sufficiency of the facts alleged in the

complaint as constituting a cause of action is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Cooperative, Inc. v. David, 468 SCRA 63,72)

The Court in Santos v. De Leon, 470 SCRA 455, 460 clearly declares:

“In determining whether the allegations of the com-plaint are sufficient to support a cause of action, the com-plaint does not have to establish or allege the facts proving the existence of a cause at the outset; this will have to be done at the trial on the merits of the case. A complaint is sufficient if it contains sufficient notice of the cause of action even though the allegations may be vague and in-definite. To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist rather than that a claim has been defec-tively stated or is ambiguous, indefinite or uncertain.”

The case of Heirs of Dolleton v. Fil-Estate Management, Inc., G.R. No. 170750, April 7, 2009, similarly holds:

“The elementary test for failure to state a cause of action is whether the complaint alleges facts which if true would justify the relief demanded. The inquiry is into the sufficiency, not the veracity, of the material allegations.


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If the allegations in the complaint furnish sufficient basis on which it can be maintained, it should not be dismissed regardless of the defense that may be presented by the defendant.”

2. Jurisprudence likewise tells us that in determining the sufficiency of the cause of action, the truth or the falsity of the allegations are beside the point because the allegations in the complaint are hypothetically admitted. Thus, a motion to dismiss on the ground that the complaint fails to state a cause of action, hypothetically admits the matters alleged in the complaint (PNB v. Court of Appeals, 291 SCRA 271, 276; See also Sta. Clara Homeowner’s Association v. Gaston, 374 SCRA 396, 411).

The hypothetical admissions however, extend only to the relevant and material facts well pleaded in the complaint, as well as to inferences fairly deductible therefrom. The admission does not include conclusions or interpretations of law (Cerrofer Realty Corporation v. Court of Appeals, 376 SCRA 144,149). The admission does not extend to conclusions or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice (Rava Development Corporation v. Court of Appeals, 211 SCRA 144,153).

3. As a consequence of the above rule, when a motion to dismiss a complaint for damages for failure to state a cause of action is denied, it cannot be argued by the plaintiff that there is no more need to present evidence on the ground that by moving for dismissal the movant had hypothetically admitted the plaintiffs allegations. It was ruled that the hypothetical admission only goes so far as determining whether said complaint should be dismissed on the ground of failure to state a cause and does not mean that the complaint has merit (Manaloto v. Veloso, supra at 368).

Allegations of the complaint determine whether or not the complaint states a cause of action

1. Current jurisprudence establishes the rule that the court ought not to consider matters outside of the complaint


in determining whether or not a complaint states a cause of action. The court should only consider the allegations of the complaint and there is no need to require the presentation of evidence to determine whether or not the complaint states a cause of action because the allegations of the complaint will disclose the compliance or non-compliance of the required statement of the cause of action.

In determining whether or not a cause of action is sufficiently stated in the complaint, the statements in the complaint may be properly considered. It is error for the court to take cognizance of external facts or to hold preliminary hearings to determine its existence (Diaz v. Diaz, 331 SCRA 302, 316).

2. The sufficiency of the statement of the cause of action must appear on the face of the complaint and its existence may be determined only by the allegations of the complaint, consideration of other facts being proscribed and any attempt to prove extraneous circumstances not being allowed (View- master Construction Corporation v. Roxas, 335 SCRA 540, 546).

In determining whether an initiatory pleading states a cause of action, “the test is as follows: Admitting the truth of the facts alleged, can the court render a valid judgment in accordance with the prayer?” To be taken into account are only the material allegations in the complaint; extraneous facts and circumstances or other matters aliunde are not considered (Zepeda v. China Banking Corporation, 504 SCRA 126, 131-132).

3. The principle that other matters aside from the material allegations of the complaint are not to be considered, is not a hard and fast rule.

In some cases, the court considered the documents attached to the complaint to truly determine sufficiency of cause of action (Agrarian Reform Beneficiaries Association v. Nicolas, 567 SCRA 540, 552). The court may consider in addition to the complaint the appended annexes, or documents, other


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pleadings of the plaintiff, or admissions in the records (Zepeda v. China Banking Corporation, 504 SCRA 126, 131-132). The reason is that such annexes are considered parts of the complaint (Sea-Land Service, Inc. v. Court of Appeals, 327 SCRA 135,140; Alberto v. Court of Appeals, 334 SCRA 756).

4. The case of Alberto v. Court of Appeals, 334 SCRA 756, 768-769 is enlightening:

“It is only logical for the lower court to consider all these pleadings in determining whether there was a suffi-cient cause of action x x x So long as those attached plead-ings are procedurally responsive to the complaint, then they may be considered in evaluating the sufficiency of the cause of action in the complaint. In addition, since the dismissal of a complaint by virtue of a motion to dismiss for failure to state or for insufficiency of cause of action would be tantamount to a summary judgment, the lower court should at least have considered the attached docu-ments and pleadings as a matter of due process. Strictly limiting the evaluation of the merits of the complaint to its averments or allegations would be too constricting an interpretation of the rule. It must be remembered that the complaint itself is accompanied by documentary evidence attached as annexes. The responsive pleadings, in addition, though not attachments to the complaint, clarify its merits since they are already part of the records of the case and should therefore be considered.”

Importance of the allegations of the complaint 1. The cause of action in a complaint is not what the

designation of the complaint states, but what the allegations in the body of the complaint define and describe. The designation or caption is not controlling, more than the allegations in the complaint themselves are, for it is not even an indispensable part of the complaint (De la Cruz v. Court of Appeals, 510 SCRA 103,117). For instance, a complaint captioned as an unlawful detainer case would actually be an action for forcible entry where the complaint alleges that the plaintiff was deprived of the possession of the premises by force, intimidation, stealth, threat or strategy.


2. In one case, the complaint filed in the Regional Trial Court was captioned “Collection of a Sum of Money with Damages.” The complaint alleged that he demanded payment of the rentals in arrears and for the defendant to vacate the premises. The Supreme Court held that the nature of the allegations make out a cause of action for unlawful detainer, not an action for collection of a sum of money. An action for unlawful detainer is one within the jurisdiction of the Municipal Trial Court. The Regional Trial Court therefore, had no jurisdiction over the action even if the action was denominated as an action to collect a sum of money (Barrazona v. RTC, Branch 61, Baguio City, 486 SCRA 555).

3. Similarly, a petition denominated as a petition for review on certiorari under Rule 45 (which is supposed to raise only pure questions of law), may be considered by the Court as a petition for certiorari under Rule 65 because the petition alleged grave abuse of discretion amounting to lack of jurisdiction (Flores v. Office of the Ombudsman, 389 SCRA 127,132; Ligon v. Court of Appeals, 294 SCRA 73, 84-85).

4. Where from a reading of the allegations of the complaint and the reliefs prayed for, the ultimate objective of the plaintiffs is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof even if the complaint is denominated as an action for reconveyance or an action to annul a deed of sale to real property. The nature of an action is not determined by the caption of the complaint but by the allegations therein together with the reliefs prayed for (Barangay Piapi v. Talip, 469 SCRA 409, 413).

5. Thus, where the allegations of the complaint state that the actual transaction between the parties was not a sale but an equitable mortgage, and that the issues and evidence in the proceedings revolved on the true nature of the transaction, the trial court correctly resolved the issue even if the action was erroneously labeled as an action for reformation. This is because it is not the caption but the allegations therein that determine the nature of the action and the Court shall grant

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the relief warranted by the obligation and the proof even if no such relief is prayed for (Lorbes v. Court of Appeals, 351 SCRA 716, 729-730).

6. It is settled jurisprudence that what determines the nature of an action as well as which court or body has jurisdiction over it, are the allegations of the complaint and the character of the relief sought, whether or not plaintiff is entitled to any and all of the reliefs prayed for. The jurisdiction of the court or tribunal over the nature of the action cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss, for otherwise, the question of jurisdiction would depend almost entirely on defendant. Hence, if the allegations of the complaint make out a case for unlawful detainer, the Municipal Trial Court is not divested of its jurisdiction to take cognizance of the case merely because the defendant claims ownership over the property subject of the action (De la Rosa v. Roldan, 501 SCRA 34, 51).

7. Although the complaint is labeled as an action for specific performance thereby giving the impression that it is based on contract, the allegations therein reveal that the action is based on law. It has been ruled that the cause of action is determined from the allegations of a complaint, not from its caption. Moreover the focus is on the sufficiency, not veracity, of the material allegations. The determination is confined to the four comers of the complaint and nowhere else (Philippine Crop Corporation v. Court of Appeals, 567 SCRA 1,10).

Splitting a single cause of action (Bar 1996; 1999; 2005) 1. Splitting a single cause of action is the act of institut

ing two or more suits for the same cause of action (Sec. 4, Rule 2, Rules of Court). In splitting a cause of action, the pleader divides a single cause of action, claim or demand into two or more parts and brings a suit for one of such parts with the intent to reserve the rest for another separate action (Quadra v. Court of Appeals, 497 SCRA 221).


Prohibition against splitting a single cause of action 1. Splitting a single cause of action is not allowed by the

Rules of Court. “A party may not institute more than one suit for a single cause of action” (Sec. 3, Rule 2, Rules of Court).

2. The practice of splitting a single cause of action is discouraged because it breeds multiplicity of suits, clogs the court dockets, leads to vexatious litigation, operates as an instrument of harassment, and generates unnecessary expenses to the parties.

3. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims.

Thus, it was held, that to interpose a cause of action in a counterclaim and again invoke it in a complaint against the same person or party would be splitting a cause of action not sanctioned by the Rules (Mariscal v. Court of Appeals, 311 SCRA 51, 56).

4. To illustrate: The act of a defendant in taking possession of the plaintiffs land by means of force and intimidation constitutes a single act of dispossession but gives rise to two reliefs: (a) recovery of possession, and (b) damages arising from the loss of possession. Both of these reliefs result from a single wrong hence, constitute but a single cause of action. Each of them cannot be the subject of two separate actions. It is procedurally erroneous for the plaintiff to file an action to recover possession and another action for damages. Both remedies must be alleged and claimed in only one complaint. To file a separate action for each relief is to split a single cause of action.

5. An action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry. The claim for damages cannot be filed separately (Progressive Development Corporation, Inc. v. Court of Appeals, 301 SCRA 637, 652-653).

The same principle applies to an action to recover the possession of a land. The action must also include the recovery


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of the fruits already taken from the land and appropriated by the defendant. A suit for the recovery of the land and a separate suit to recover the fruits will not be sustained. Also, when one files a complaint for unlawful detainer on the ground of non-payment of rentals, the complaint must include the recovery of the rentals in arrears, such recovery being an integral part of the cause of action for unlawful detainer.

6. A single act may sometimes violate several rights of a person. Nevertheless, the plaintiff has only one cause of action regardless of the number of rights violated. If a car owner sustains injuries to his person and damage to his car as a result of the negligent driving of the defendant, two rights of the plaintiffs have been violated, namely, his personal right to be safe in his person and his property right to have his car intact and free from any damage. Under the circumstances, the plaintiff can only file a single action for the recovery of damages for both types of injuries. Filing an action to recover damages to his person and later for damages to his car would be splitting a single cause of action. If however, a passenger in the same car was also injured, the injuries to the passenger gives rise to a cause of action separate and distinct from those sustained by the car owner because distinct rights belonging to different persons have been violated. The injured passenger may file a suit against the defendant separate from the suit filed by the car owner.

7. A tenant illegally ejected from the land is entitled to two reliefs — one for reinstatement and another for damages. Since both reliefs arose from the same cause of action, they should be alleged in one complaint (Gozon v. Vda. De Barrameda, 11 SCRA 376, 379).

8. However, a cause of action for the reconveyance of title over property does not include a cause of action for forcible entry or unlawful detainer. They are distinct causes of action. Hence, the pendency of an action for reconveyance of title does not divest the Municipal Trial Court of its jurisdiction to try an ejectment case of either forcible entry or unlawful detainer. What is involved in an ejectment case is possession de facto or


material possession. In an action for reconveyance, the issue is ownership (De la Cruz v. Court of Appeals, 133 SCRA 520, 527; Tecson v. Gutierrez, 452 SCRA 781, 787).

9. An action for the recovery of taxes should also include the demand for surcharges resulting from the delinquency in the payment of said taxes. The non-payment of taxes gave rise to two reliefs: (a) the recovery of the unpaid taxes; and (b) the recovery of the surcharges resulting from non-payment of the taxes. These two reliefs are results of a single cause of action and which should be pursued in a single complaint (City of Bacolod v. San Miguel Brewery, Inc., 29 SCRA 819, 827).

10. A bank cannot file a civil action against the debtor for the collection of the debt and then subsequently file an action to foreclose the mortgage. This would be splitting a single cause of action (Danao v. Court of Appeals, 154 SCRA 446, 448; Industrial Finance Corp. v. Apostol, 177 SCRA 521, 524; Bar 1999).

The three tests to ascertain whether two suits relate to a single or common cause of action

1. A more recent case enumerated certain tests. These are:

1. whether the same evidence would support and sustain both the first and second causes of action (also known as the “same evidence” test);

2. whether the defenses in one case may be used to substantiate the complaint in the other;

3. whether the cause of action in the second case existed at the time of the filing of the first complaint (Urn- ale v. Canoga Park Development Corporation, 654 SCRA 155,162, G.R. No. 167246, July 20,2011). 2. In Umale v. Canoga Park Development Corporation, 654

SCRA 155, G.R. No. 167246, July 20,2011, the respondent filed an unlawful detainer case against the petitioner even before the expiration of the lease contract, because of alleged


violation of stipulations in the lease contract regarding the use of the property. It was alleged that under the lease contract, the petitioner shall use the leased lot as a parking space for light vehicles and as a site for a small drivers’ canteen, and may not utilize the subject premises for other purposes without the respondent’s prior written consent. The petitioner, however, constructed restaurant buildings and other commercial establishments on the lot, without first securing the required written consent from the respondent, and the necessary permits and also subleased the property to various merchants-tenants in violation of the lease contract. The MTC decided the case in favor of the respondent which decision was affirmed by the RTC. The case however, was re-raffled to another branch of the RTC when the Presiding Judge inhibited himself from resolving the petitioner’s motion for reconsideration. The RTC to which the case was this time assigned granted the petitioner’s motion for reconsideration thereby reversing and setting aside the MTC decision. Accordingly, the case was dismissed for being prematurely filed. Thus, the respondent filed a petition for review with the Court of Appeals.

During the pendency of the petition for review, the respondent filed another case for unlawful detainer against the petitioner. This time the respondent used as a ground for ejectment the expiration of the parties’ lease contract. Judgment was rendered in favor of the respondent. On appeal, the RTC reversed and set aside the decision of the MTC on the ground of litis pendentia. In the CA, the respondent argued that there exists no litis pendentia between the parties because the two cases involved different grounds for ejectment. The first case was filed because of violations of the lease contract, while the second case was filed due to the expiration of the lease contract. The respondent emphasized that the second case was filed based on an event or a cause not yet in existence at the time of the filing of the first case. The CA agreed and ordered the reinstatement of the decision of the MTC. It ruled that there was no litis pendentia because the two civil cases have different causes of action.


In a petition for review on certiorari filed by the petitioner, the Court ruled that there was no litis pendentia, thus:

x x x “As a ground for the dismissal of a civil action, litis

pendentia refers to a situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious.

Litis pendentia exists when the following requisites are present: identity of the parties in the two actions; sub-stantial identity in the causes of action and in the reliefs sought by the parties; and the identity between the two actions should be such that any judgment that may be rendered in one case, regardless of which party is success-ful, would amount to res judicata in the other.” In resolving the issue the Court mentioned the three tests to

ascertain whether two suits relate to a single or common cause of action. The court proceeds thus:

“x x x Of the three tests cited, the third one is es-pecially applicable to the present case, i.e., whether the cause of action in the second case existed at the time of the filing of the first complaint - and to which [th]e [Court] answer[ed] in the negative. The facts clearly show that the filing of the first ejectment case was grounded on the petitioner’s violation of stipulations in the lease contract, while the filing of the second case was based on the expiration of the lease contract. At the time the respondent filed the first ejectment complaint xxx the lease contract between the parties was still in effect, x x x It was only at the expiration of the lease contract that the cause of action in the second ejectment complaint accrued and made available to the respondent as a ground for ejecting the petitioner. Thus, the cause of action in the second case was not yet in existence at the time of filing of the first ejectment case.

In response to the petitioner’s contention that the similarity xxx rests on the reiteration in the second case of the cause of action in the first case, [th]e [Court] rule[s]


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that the restatement does not result in substantial iden-tity between the two cases. Even if the respondent alleged violations of the lease contract as a ground for ejectment in the second complaint, the main basis for ejecting the petitioner in the second case was the expiration of the lease contract. If not for this subsequent development, the respondent could no longer file a second complaint for unlawful detainer because an ejectment complaint may only be filed within one year after the accrual of the cause of action, which, in the second case, was the expiration of the lease contract.”

Anticipatory breach As a general rule, a contract to do several things at several

times is divisible in its nature. This kind of obligation authorizes successive actions and a judgment recovered for a single breach does not bar a suit for a subsequent breach. If the obligor manifests an unqualified and positive refusal to perform a contract, though the performance of the same is not yet due, and the renunciation goes to the whole contract, it may be treated as a complete breach, which will entitle the injured party to bring his action at once. In this case, the breach is considered a total breach and there can only be one action and the plaintiff must recover all his damages therein (Blos-soms & Co. v. Manila Gas Corporation, 55 Phil. 226,240-241).

Effect of splitting a single cause of action (Bar 1998; 1999) 1. If two or more suits are instituted for a single cause of

action, “the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the others” (Sec. 4, Rule 2, Rules of Court). The remedy then of the defendant is to file a motion to dismiss.

Hence, if the first action is pending when the second action is filed, the latter may be dismissed based on litis pendencia, i. e., there is another action pending between the same parties for the same cause (Sec. l[e•], Rule 16, Rules of Court). If a final judgment had been rendered in the first action when the second action is filed, the latter may be dismissed based on


res judicata, i.e., that the cause of action is barred by a prior judgment (Sec. l[f], Rule 16, Rules of Court).

2. Note that it need not be the second action filed that should be dismissed. The phraseology of the present rule (Sec. 4, Rule 2) does not necessarily confine the dismissal to the second action. As to which action should be dismissed would depend upon judicial discretion and the prevailing circumstances of the case.

Joinder of causes of action (Bar 1996; 1999; 2000; 2005; 2011) 1. Joinder of causes of action is the assertion of as many

causes of action as a party may have against another in one pleading alone (Sec. 5, Rule 2, Rules of Court). It is the process of uniting two or more demands or rights of action in one action (1 C.J.S., Actions § 61).

Illustration: D is the debtor of C for P350,000.00 due on January 5, 2011. D likewise owes C P350,000.00 due on February 13, 2011. Both debts are evidenced by distinct promissory notes and incurred for different reasons. D has not paid the debts despite demand. Each debt is a separate cause of action because each is the subject of a different transaction. However, under the rule on joinder of causes of action, C may file a single suit against D for the collection of both debts, despite the claims being actually separate causes of action and having arisen out of different transactions.

2. When the causes of action accrue in favor of the same plaintiff and against the same defendant, i.e., there is only one plaintiff and one defendant, it is not necessary to ask whether or not the causes of actions arose out of the same transaction or series of transactions and that there exists a question of law or fact common to all the plaintiffs or defendants. This question is only relevant when there are multiple plaintiffs or multiple defendants. In the hypothetical just discussed in par. 1, is C obliged to join the causes of action against D? Answer: No. C is not obliged to do so. He may file a single suit for each of the claims if he desires because each debt is a separate


cause of action. Joinder of causes of action is not compulsory. It is merely permissive (Bar 1999). The rule uses the word “may,” not “shall” (Sec. 5, Rule 2, Rules of Court).

In case C decides in favor of a joinder, the suit shall be filed in the Regional Trial Court because the total amount of the debts is within that court’s jurisdiction. Under the Rules, when the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction (Sec. 5[d], Rule 2, Rules of Court; Sec. 33[1], B.P. 129, as amended). This situation follows the so- called totality test for purposes of jurisdiction.

3. Assume that aside from the above claims, C as lessor also wants to eject D from the apartment occupied by D as his lessee. May the action be joined with the claims for money? Answer: No. An action for ejectment is a special civil action. This kind of action cannot be joined with ordinary civil actions. The joinder does not include special civil actions or those actions governed by special rules. The rule is clear: “The joinder shall not include special civil actions or actions governed by special rules” (Sec. 5[b], Rule 2, Rules of Court). Confusion in the application of procedural rules would certainly arise from the joinder of ordinary and special civil actions in a single complaint.

4. Assume that C has the following causes of action against D: (a) PI million based on a note; (b) PI million based on torts; and (c) foreclosure of a real estate mortgage. May the causes of action be joined? They can be joined except the action for foreclosure of real estate mortgage which is a special civil action.

The applicable provision of the Rules is clear: “The joinder shall not include special civil actions or

actions governed by special rules” (Sec. 5[b], Rule 2, Rules of Court).

5. When there are two or more defendants, or two or more plaintiffs, the causes of action against the defendants can only be joined if there is a compliance with the rules on


joinder of parties under Sec. 6 of Rule 3 (Flores v. Mallare- Philipps, 144 SCRA 377, 379). This provision requires that before there can be a proper joinder of parties, a right to relief exists in favor of or against several persons whether jointly, severally or in the alternative and that right to relief arises out of the same transaction or series of transactions and that there exists a question of law or fact common to all such plaintiffs or to all such defendants. This requirement does not apply when there is only one plaintiff and one defendant because in this case there are no parties to be joined.

Illustrations: (a) Suppose C is the creditor of D for P350,000.00 and also of E for P375,000.00. Both debts are due and these debts have been contracted separately. May C join D and E as defendants in the same complaint? Answer: No. Where a party sues two or more defendants, it is necessary for the causes of action to arise out of the same transaction or series of transactions and that there should be a question of law or fact common to them. The debt of D is a transaction different from the debt of E. Hence, they cannot be sued under a single complaint.

(b) Suppose P is a passenger in a bus owned by O and driven by D. Because of the negligence of D, P sustained injuries when the vehicle fell into a ditch by the roadside. May P as plaintiff join O and D as defendants in the same complaint based on a quasi-delict? Answer: Yes. The liability of O and that of D arose out of the same accident which gave rise to a common question of law or fact. Note that the existence of a contractual relationship does not preclude a suit based on a quasi-delict. O may be sued under a quasi-delict, as an employer of D if P so desires (Art. 2180, Civil Code of the Philippines; Air France v. Carrascoso, 18 SCRA 155).

(c) If A and B both sign a promissory note for PI million and bind themselves to be jointly liable for the debt in favor of C, there are two distinct obligations within the same promissory note, namely: (a) the obligation of A to C for P500,000.00; and (b) the obligation of B to C for P500,000,00. Under Art. 1208 of the Civil Code of the Philippines, unless otherwise indicated by the obligation or by law, the debt or credit shall


be presumed divided into as many equal shares as there are creditors or debtors. In other words the obligation under the promissory note in the illustration is joint, not solidary. If the obligation is joint, C may sue A alone or sue B alone. This is because the debts are separate and distinct causes of action. May C however, join A and B under one complaint and thereby join the causes of action against them? Answer: Yes. The debt of A and the debt of B arose out of the same transaction, i.e., the same promissory note and would necessarily give rise to a common question of law or fact.

Joinder of claims in small claims cases The plaintiff may join in a single statement of claim one or

more separate small claims against a defendant provided that the total amount claimed, exclusive of interests and costs, does not exceed P100,000 (Sec. 6, A.M. No. 08-8-7-SC, as amended).

Remedy in case of misjoinder of actions When there is a misjoinder of causes of action, the erroneously

joined cause of action can be severed and proceeded with separately upon motion by a party or upon the court’s own initiative. Misjoinder is not a ground for the dismissal of an action (Sec. 6, Rule 2, Rules of Court). For example, if an action for forcible entry is joined in one complaint with the causes of actions based on several promissory notes, the complaint should not be dismissed based on the misjoinder of the forcible entry case. Instead, the cause of action predicated on forcible entry may be severed from the complaint upon motion of a party or by the court motu proprio and proceeded with separately in another action.

The applicable provision is unequivocal: “Sec. 6. Misjoinder of causes of action. — Misjoinder

of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and pro-ceeded with separately.”


III. PARTIES (Rule 3)

Parties to a civil action 1. There are two main categories of parties to a civil action

namely, the plaintiff and the defendant (Sec. 1, Rule 3, Rules of Court).

2. The plaintiff is the claiming party or more appropriately, the original claiming party and is the one who files the complaint. The term however, does not exclusively apply to the original plaintiff. It may also apply to a defendant who files a counterclaim, a cross-claim or a third party complaint. The Rules of Court (Sec. 1, Rule 3) defines the term ‘plaintiff,’ as the claiming party, the counter-claimant, the cross-claimant or the third (fourth, etc.)-party plaintiff (Sec. 1, Rule 3, Rules of Court).

3. The defendant does not only refer to the original defending party. If a counterclaim is filed against the original plaintiff, the latter becomes a defendant and the former, a plaintiff in the counterclaim. Under the Rules (Sec. 1, Rule 3), the term ‘defendant’ refers also to a defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)- party defendant.

Who may be parties

Only the following may be parties to a civil action:

(a) natural persons,

(b) juridical persons, and (c) entities authorized by law (Sec. 1, Rule 3, Rules of Court).

Juridical persons as parties The juridical persons who may be parties to a civil action are

those enumerated in Art. 44 of the Civil Code of the Philippines, namely:

(a) The State and its political subdivisions;


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(b) Other corporations, institutions and entities for public interest or purpose, created by law; and

(c) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Entities authorized by law to be parties One need not be a natural or a juridical person to be a party to

a civil action. Sec. 1 of Rule 3 adds a third possible party to a civil action aside from natural persons and juridical persons. Said provision recognizes “entities authorized by law.” As long as an entity is authorized by law to be a party, such entity may sue or be sued or both. Consider the following examples:

(a) Under Sec. 21 of the Corporation Code of the Philippines, a corporation by estoppel is precluded from denying its existence and the members thereof can be sued and be held liable as general partners.

(b) A contract of partnership having a capital of three thousand pesos or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons (Art. 1772 in relation to Art. 1768 of the Civil Code of the Philippines).

(c) The estate of a deceased person is a juridical entity that has a personality of its own (Nazareno v. Court of Appeals, 343 SCRA 637,653 citing Limjoco v. Intestate Estate ofFragante, 80 Phil. 776). Since it has a personality of its own, it may be a party to an action.

(d) A legitimate labor organization may sue and be sued in its registered name (Art. 242[e], Labor Code of the Philippines).

(e) The Roman Catholic Church may be a party and as to its properties, the archbishop or diocese to which


they belong may be a party (Barlin v. Ramirez, 7 Phil. 47, 41; Versoza v. Fernandez, 49 Phil. 627, 633- 634).

(f) A dissolved corporation may prosecute and defend suits by or against it provided that the suits (i) occur within three (3) years after its dissolution, and (ii) the suits are in connection with the settlement and closure of its affairs (Sec. 122, Corporation Code of the Philippines).

Entity without a juridical personality as a defendant 1. An example of an entity that is neither a natural nor a

juridical person but is allowed by the Rules of Court to be a party to an action, although as a defendant, is the one treated in Sec. 15 of Rule 3 of the Rules of Court.

2. Under Sec. 15, “when two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.” Under the same provision, the responsive pleading of the entity sued must disclose the names and addresses of its members since they are the persons ultimately liable to the plaintiff.

Thus, if A, B, C, D and E without incorporating themselves or without registering as a partnership, enter into transactions using the common name, “Ocean Quest Corp.,” they may be sued as “Ocean Quest Corp.” When the defendant “corporation” answers, the names of A, B, C, D, and E and their addresses must be revealed. Note however, that the authority to be a party under this section is confined only to being a defendant and not as a plaintiff. This is evident from the words, they may be sued.

Effect when a party impleaded is not authorized to be a party 1. Where the plaintiff is not a natural or a juridical person or

an entity authorized by law, a motion to dismiss may be filed on the ground that “the plaintiff has no legal capacity to sue” (Sec. l[d], Rule 16, Rules of Court).


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2. Where it is the defendant who is not a natural or a juridical person or an entity authorized by law, the complaint may be dismissed on the ground that the “pleading asserting the claim states no cause of action” or ‘failure to state a cause of action’ (Sec. l[g], Rule 16, Rules of Court), because a complaint cannot possibly state a cause of action against one who cannot be a party to a civil action.

Averment of capacity to sue or be sued Facts showing the capacity of a party to sue or be sued or the

authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party must be averred (Sec. 4, Rule 8, Rules of Court; Board of Optometry v. Colet, 260 SCRA 88).

A minor or an incompetent as a party A minor or an incompetent, may sue or be sued. He can be a

party but with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem (Sec. 5, Rule 3, Rules of Court).

Real party in interest (Bar 1988; 1989) 1. “A real party in interest is the party who stands to be

benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit” (Sec. 2, Rule 3, Rules of Court).

2. To be a real party-in-interest, the interest must be ‘real,’ which is a present substantial interest as distinguished from a mere expectancy or a future, contingent subordinate or consequential interest (Rayo v. Metrobank, 539 SCRA 571, 579; Fortich v. Corona, 289 SCRA 624, 649). It is an interest that is material and direct, as distinguished from a mere incidental interest (Mayor Rhustom Dagadag v. Michael C. Tongnawa, 450 SCRA 437, 443-444).

The Court in Figuration v. Libi, 539 SCRA 50, 62, elucidates:


“Interest” within the meaning of the rule means material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. The interest of the party must also be personal and not one based on a desire to vindicate the constitutional right of some third and unrelated party. Real interest, on the oth-er hand, means a present substantial interest, as distin-guished from a mere expectancy or a future, contingent, subordinate, or consequential interest.

3. The determination of who the real party-in-interest is requires going back to the elements of a cause of action. A cause of action involves the existence of a right and a violation of such right. Evidently, the owner of the right violated stands to be the real party in interest as plaintiff and the person responsible for the violation is the real party in interest as defendant (See for further readings: Lee v. Romillo, 161 SCRA 589). Thus, in a suit for violation of a contract, the parties in interest would be those covered by the operation of the doctrine of relativity of contracts under Art. 1311 of the Civil Code of the Philippines, namely, the parties, their assignees and heirs. Likewise in a suit for annulment of a contract, the real parties in interest would be those who are principally or subsidiarily bound by the contract (Art. 1397, Civil Code of the Philippines).

4. A person who has not taken part in a contract cannot, sue or be sued for performance or for cancellation thereof unless he shows that his interest is affected thereby (Sustigu- er v. Tamayo, 176 SCRA 579, 590) as when he is an assignee of a right or a right of action (Uy v. Court of Appeals, 314 SCRA 69, 78). The parties to a contract are the real parties in interest in an action upon it. As a rule, under the doctrine of relativity of contracts embodied in Art. 1311 of the Civil Code of the Philippines, only the contracting parties, their heirs and assigns are bound by the stipulation in the contract. They are the ones who would benefit from it and could violate it. Thus, one who is not a party to a contract, and for whose benefit it was not expressly made, cannot maintain an action on it. (Bar 2011)


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5. While ordinarily one who is not a privy to a contract may not bring an action to enforce it, there are recognized exceptions to this rule. For example, contracts containing stipulations pour autrui or stipulations expressly conferring benefits to a non-party may sue under the contract provided the acceptance of such benefit have been accepted and communicated by the beneficiary to the obligor prior to its revocation (Art. 1311, Civil Code of the Philippines).

Also, parties who have not taken part in a contract may show that they have a real interest affected by its performance or annulment. In other words, those who are not principally or subsidiarily obligated in a contract, in which they had no intervention, may show their detriment that could result from it. For instance, Art. 1313 of the Civil Code provides that “creditors are protected in cases of contracts intended to defraud them.” Further, Art. 1381 of the Civil Code provides that contracts entered into in fraud of creditors may be rescinded when the creditors cannot in any manner collect the claims due them. Thus, a creditor who is not a party to a contract can sue to rescind the contract to redress the fraud committed upon him.

6. A third party who has not taken part in a compromise agreement has no right to ask for the enforcement of the agreement (Westmont Bank v. Shugo Noda & Co. Ltd., 307 SCRA 381, 391). A person who is not a party to a compromise agreement cannot seek the amendment or modification of the same (Periquet, Jr. v. Intermediate Appellate Court, 238 SCRA 697, 713).

7. A mere agent, who is not an assignee of the principal cannot bring suit under a deed of sale entered into in behalf of his principal because it is the principal, not the agent who is the real party in interest (Uy v. Court of Appeals, 314 SCRA 69, 77).

In case the action is brought against the agent, the action must be brought against an agent acting in his own name and for the benefit of an undisclosed principal without joining the principal, except when the contract involves things belonging


to the principal. The real party-in-interest is the party who would be benefited or injured by the judgment or is the party entitled to the avails of the suit. An attorney-in-fact is not a real party in interest and that there is no law permitting an action to be brought by and against an attomey-in-fact alone (Carillo v. Court of Appeals, 503 SCRA 66, 75-76).

8. Should a lawful possessor be disturbed in his possession, it is the possessor, not necessarily the owner of the property, who can bring the action to recover the possession. The argument that the complaint states no cause of action because the suit was filed by a mere possessor and not by the owner is not correct (Philippine Trust Company v. Court of Appeals, 320 SCRA 719, 729).

In an action for forcible entry, the possessor/lessee is the real party in interest as plaintiff and not the owner/lessor. The issue in an action for forcible entry is mere possession. But in an action to recover damages for injury caused by the deforciant on the property, the owner/lessor is the real party in interest as plaintiff.

9. When the corporate offices have been illegally searched, a corporate officer is not the real party in interest to question the search. The right to contest the transgression belongs to the corporation alone which has a personality of its own separate and distinct from that of an officer or a stockholder. The objection to an unlawful search and seizure is purely personal and cannot be availed of by third persons (Stonehill v. Diokno, 20 SCRA 383).

However, even if the cause of action belongs to the corporation, if the board refuses to sue despite demand by the stockholders to sue and protect or vindicate corporate rights, a stockholder is allowed by law to file a derivative suit in the corporate name. In such a suit, the real party-in-interest is actually the corporation and the stockholder filing the action is a mere nominal party (Asset Privatization Trust v. Court of Appeals, 300 SCRA 579, 614).

10. In an action for ejectment, any one of the co-owners may bring the action (Art. 487, Civil Code of the Philippines).


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11. In an action to annul her marriage, it is the woman, not her father who is the real party in interest where the woman is not under the age of legal consent (Siman v. Leus, 37 Phil. 967, 968).

12. Under Art. 1768 of the Civil Code of the Philippines, a partnership has a juridical personality separate and distinct from that of each of the partners. Hence, if the contract was entered into by the partnership in its name, it is the partnership, not its officers or agents which should be impleaded in any litigation involving property registered in its name. A violation of this rule will result in dismissal of the complaint (Aguila v. Court of Appeals, 319 SCRA 246, 254) for failure to state a cause of action.

13. In an action for reversion of public lands, a person who does not even claim to be occupying the property in any capacity is not a real party in interest (Figuration v. Libi, 539 SCRA 50, 62-63).

Plaintiff in environmental cases Any real party in interest, including the government and

juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law (Sec. 4, Rule 2, Rules of Procedure for Environmental Cases).

Ground for dismissal when a party is not the real party in interest 1. It will be observed that Rule 16 does not provide for a

ground for a motion to dismiss which directly states that ‘the plaintiff or the defendant is not the real party in interest.’ Instead, the ground provided for in Sec. 1(g) of Rule 16 is:

“g. That the pleading asserting the claim states no cause of action.”

2. It must likewise be noted that the rule does not consider ‘lack’ of a cause of action or ‘absence’ of a cause of


action as the ground for dismissal. What it supplies as a ground is that the pleading asserting the claim “states no cause of action.” It is the failure to state the cause of action, not its absence or lack which could be invoked for the dismissed of the claim.

3. Thus, if the plaintiff for instance has capacity to sue but he is not the ‘real party in interest,’ the ground for dismissal is a ‘failure to state a cause of action’ or that the complaint ‘states no cause of action.’

4. The case of Aguila v. Court of Appeals, 319 SCRA 246, 253, is enlightening:

“Any decision rendered against a person who is not a real party in interest in the case cannot be executed. Hence, a complaint filed against such person should be dismissed for failure to state a cause of action.”

5. The riding in Balagtas v. Court of Appeals, 317 SCRA 69, 776-77, likewise clearly states that if the suit is not brought in the name of or against the reed party in interest, a motion to dismiss may be filed on the ground that the complaint ‘states no cause of action.’

Prosecution/defense of an action in the name of the real party in interest

Every action must be prosecuted and defended in the name of the real party-in-interest, unless otherwise authorized by law or by the Rules (Sec. 2, Rule 3, Rules of Court; Republic of the Philippines v. Gregorio Aquino Sr., 451 SCRA 735, 746).

Representative parties 1. Some actions may be allowed to be prosecuted or defended

by a representative or someone acting in a fiduciary capacity like a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or by the Rules (Sec. 3, Rule 3, Rules of Court).

2. Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in


a fiduciary capacity (like the trustee of an express trust, an executor, or administrator), the beneficiary shall be included in the title of the case and shall be deemed to be the real party- in-interest (Sec. 3, Rule 3, Rules of Court; Aron v. Realon, 450 SCRA 372, 388). The phraseology of Sec. 3, Rule 3 leaves no doubt as to what the rule is. Impleading the beneficiary as a party is mandatory since said beneficiary is deemed to be the real party-in-interest.

Suit by an agent When an agent acts in his own name and for the benefit of an

undisclosed principal, he may sue or be sued without joining the principal. The principal however, should be joined when the contract involves things belonging to the principal (Sec. 3, Rule 3, Rules of Court; See Art. 1883, Civil Code of the Philippine).

Citizen suit under the Rules of Procedure for Environmental Cases

1. A citizen suit may be filed by any Filipino citizen in representation of others, including minors or generations yet unborn, to enforce rights or obligations under environmental laws (Sec. 5, Rule 2, Part II, Rules of Procedure for Environmental Cases). This is a unique rule which authorizes a suit in representation of generations yet unborn even if those represented are, at the time of the filing of the suit, yet neither conceived nor bom.

2. When the suit is filed, the court shall issue an order which shall contain the following: (a) a brief description of the cause of action; (b) a brief description of the reliefs prayed for, and (c) an order requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof (Sec. 5, Rule 2, Part II, Rules of Procedure for Environmental Cases).

3. The plaintiff may publish the order once in a newspaper of general circulation in the Philippines or furnish all affected barangays copies of said order (Sec. 5, Rule 2, Part II, Rules of Procedure for Environmental Cases).


Failure to include the name of a party in the pleading The mere failure to include the name of a party in the title of

the complaint is not fatal because the Rules of Court requires the courts to pierce the form and go into the substance and not be misled by a false or wrong name in the pleadings. The averments are controlling and not the title. Hence, if the body indicates the defendant as a party to the action, his omission in the title is not fatal (Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 58-59).

Rule on ‘standing’ as distinguished from the concept of ‘real party-in-interest’

1. Locus standi is defined as a right of appearance in a court of justice on a given question. In private suits, standing is governed by the “real-parties-in interest” rule found in Sec. 2, Rule 3 of the Rules of Court which provides that “every action must be prosecuted or defended in the name of the reed party-in-interest” (Baltazar v. Ombudsman, 510 SCRA 74, 83).

2. However, the concept of ‘standing’ because of its constitutional underpinnings is very different from questions relating to whether or not a particular party is a real party- in-interest. Although both are directed towards ensuring that only certain parties can maintain an action, the concept of standing requires an analysis of broader policy concerns. The question as to who the real party-in-interest is involves only a question on whether a person would be benefited or injured by the judgment or whether or not he is entitled to the avails of the suit (Kilosbayan, Inc. v. Morato, 246 SCRA 540, 562).

Indispensable parties (Bar 1996) 1. An indispensable party is a real party-in-interest without

whom no final determination can be had of an action (Sec. 7, Rule 3, Rules of Court). Without the presence of this party the judgment of a court cannot attain real finality (Servicewide Specialists, Inc. v. Court of Appeals, 318 SCRA 493, 501). The joinder of indispensable parties is mandatory


and courts cannot proceed without their presence (De Castro v. Court of Appeals, 384 SCRA 607, 613).

2. “An indispensable party is a party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who has not only an interest in the subject matter of the controversy, but also has an interest of such nature that a final decree cannot be made without affecting his interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. It has also been considered that an indispensable party is a person in whose absence there cannot be a determination between the parties already before the court which is effective, complete, or equitable. Further, an indispensable party is one who must be included in an action before it may properly go forward.

The presence of indispensable parties is a condition for the exercise of juridical power and when an indispensable party is not before the court, the action should be dismissed. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

The joinder of indispensable parties is mandatory. Without the presence of indispensable parties to the suit, the judgment of the court cannot attain real finality. Strangers to a case are not bound by the judgment rendered by the court” (Lucman v. Malawi, 511 SCRA 268, 278-281; See also Spouses Garcia v. Garcia, G.R. No. 169157, November 14, 2011).

3. A person is not an indispensable party, however, if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice between them. Also, a person is not an indispensable party if his presence would merely permit complete relief between him and those already parties to the action, or if he has no interest in the subject matter of the action. It is not a sufficient reason to declare a person to be an indis


pensable party that his presence will avoid multiple litigation. In a joint obligation for instance, the interest of one debtor is separate and distinct from that of his co-debtor and a suit against one debtor does not make the other an indispensable party to the suit.

Compulsory joinder of indispensable parties 1. Although normally, a joinder of parties is permissive (Sec.

6, Rule 3, Rules of Court), the joinder of a party becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of indispensable parties (Sec. 7, Rule 3, Rules of Court).

2. The presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. It is precisely when an indispensable party is not before the court that the action should be dismissed. Thus, the plaintiff is mandated to implead all the indispensable parties, considering that the absence of one such party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. One who is a party to a case is not bound by any decision of the court; otherwise, he will be deprived of his right to due process (Sepulveda, Sr. v. Pelaez, 450 SCRA 302, 314).

Dismissal for failure to implead an indispensable party (Bar 2010) 1. It has been ruled on various occasions that since the

joinder of indispensable parties is compulsory, the action should be dismissed when indispensable parties are not impleaded or are not before the court. The absence of indispensable parties renders all subsequent actions of the trial court null and void for want of authority to act, not only as to the absent parties but even as to those present (MWSS v. Court of Appeals, 297 SCRA 287, 308).

2. It is worthy of note that the Court in its rulings did not hold that the failure to join an indispensable party results


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in the outright dismissal of the action. An outright dismissal is not the immediate remedy authorized by the Rules because under the Rules, a non-joinder (or misjoinder) of parties is not a ground for dismissal of an action. Instead, parties may be dropped or added by the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just (Sec. 11, Rule 3, Rules of Court). It is when the order of the court to implead an indispensable party goes unheeded may the case be dismissed. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when, among others, he does not comply with any order of the court (Sec. 3, Rule 17, Rules of Court; Plasabas v. Court of Appeals, 582 SCRA 686, 692-693).

3. One significant case adequately clarifies the procedure to be undertaken when an indispensable party is not impleaded (Bar 2010).

The case of Pamplona Plantation Co. v. Tinghil, 450 SCRA 421, 433 is the authority to support the view that an immediate dismissal of the action when indispensable parties are not impleaded is not the immediate procedural remedy.

Said the Court:

“The non-joinder of indispensable parties is not a ground for the dismissal of an action. At any stage of a judicial proceeding and/or at such times as are just, par-ties may be added on the motion of a party or on the ini-tiative of the tribunal concerned. If the plaintiff refuses to implead an indispensable party despite the order of the court, that court may dismiss the complaint for the plaintiffs failure to comply with the order. The remedy is to implead the non-party claimed to be indispensable” (Pamplona Plantation Co. v. Tinghil, 450 SCRA 421).

4. A more recent case holds that whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the trial and to order the inclusion of such party. The absence of an indispensable party renders all subsequent actuations of the


court null and void, for want of authority to act, not only as to the absent parties, but even as to those present. Accordingly, the responsibility of impleading all the indispensable parties rests on the plaintiff. The defendant does not have the right to compel the plaintiff to prosecute the action against a party if he does not wish to do so, but the plaintiff will have to suffer the consequences of any error he might commit in exercising his option (Uy v. Court of Appeals, 494 SCRA 535, 545).

Necessary parties 1. A necessary party is one who is not indispensable but who

ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (Sec. 8, Rule 3, Rules of Court).

2. A final determination of the case can be had among the parties already impleaded where a necessary party for some justifiable reason, is not joined. But a necessary party should be joined so those already parties may obtain complete relief.

Distinction between an indispensable and a necessary party 1. An indispensable party must be joined under any and all

conditions while a necessary party should be joined whenever possible (Borlasa v. Polistico, 47 Phil. 345, 348).

Stated otherwise, an indispensable party must be joined because the court cannot proceed without him. Hence, his presence is mandatory. The presence of a necessary party is not mandatory because his interest is separable from that of the indispensable party. He has to be joined whenever possible to afford complete relief to those who are already parties and to avoid multiple litigations.

2. A final decree can be had in a case even without a necessary party because his interests are separable from the interest litigated in the case (Chua v. Torres, 468 SCRA 358, 367; Seno v. Mangubat, 156 SCRA 113,119).


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Duty of pleader if a necessary party is not joined; effect (Bar 1998)

Whenever in any pleading in which a claim is asserted, a necessary party is not joined, the pleader shall set forth the name of the necessary party, if his name is known, and shall state why such party is omitted (Sec. 9, Rule 3, Rules of Court).

When court may order joinder of a necessary party (Bar 1998) If the reason given for the non-joinder of the necessary party is

found by the court to be unmeritorious, it may order the pleader to join the omitted party if jurisdiction over his person may be obtained (Sec. 9, Rule 3, Rules of Court).

Effect of failure to comply with the order of the court (Bar 1998; 2011)

The failure to comply with the order of the court to include a necessary party, without justifiable cause, shall be deemed a waiver of the claim against such party (Sec. 9, Rule 3, Rules of Court).

Effect of a justified non-inclusion of a necessary party (Bar 1998) The non-inclusion of a necessary party does not prevent the

court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party (Sec. 9, Rule 3, Rules of Court; Agro Conglomerates, Inc. v. Court of Appeals, 348 SCRA 450, 460; Hemedez v. Court, 316 SCRA 347, 375).

Illustrations Consider the following: 1. “A” and “B” are the signatories to a promissory note

which reads: “We promise to pay to the order of‘C’ PI million on February 27, 2009.” On the due date of the obligation, the creditors failed to pay despite demand.


(a) May “C” sue “A” alone? Answer. “C” may sue “A” alone. The cause of action against “A” is separate and distinct from the cause of action against “B.” The tenor of the note discloses merely a joint obligation. In a joint obligation the credit or debt shall be divided into as many equal shares as there are creditors and debtors, the credits or debts being considered distinct from each other (Art. 1208, Civil Code of the Philippines). Being debtors in a joint obligation, the debtors then are liable separately for P500,000 each.

(b) Is “A” in a suit by “C” against him a necessary or an indispensable party? Answer: “A” is an indispensable party. Without him being impleaded as defendant, “C” cannot collect the P500,000 share of “A.” Without “A” there cannot be a final determination of the case against him.

(c) In the suit by “C” against “A” is “B” a necessary or an indispensable party? Answer: “B” is not an indispensable party. “C” can collect from “A” P500,000 without impleading “B.” He is only a necessary party because without “B” being made a party to the action, “C” cannot have a complete relief, i.e., he cannot collect his entire credit of PI million. If he desires a complete recovery, “B” must be impleaded. 2. In the above example, assuming that the debtors bound

themselves to pay the PI million solidarity, would “B” be an indispensable or a necessary party in a suit by “C” against “A?” Answer: “B” would not be a necessary party. Complete relief could be had by “C” without joining “B” because the obligation is solidary. “A” could be ordered to pay the entire obligation of PI million. Neither is “B” an indispensable party. There could be a complete and final determination of the action for a sum of money without “B” being joined.

Solidarity does not make a solidary obligor an indispensable party in a suit filed by the creditor against another solidary debtor (Republic v. Sandiganbayan, 173 SCRA 72,86-87; Operators, Inc. v. American Biscuit Company, 154 SCRA 738).


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3. B bought a car from S on an installment basis. A chattel mortgage was executed on the car in favor of S to secure the obligation. Before the payment was completed, B sold the car to D. It was agreed solely between B and D that D would be responsible for the monthly installments. D failed to pay three installments.

May S sue D alone in the foreclosure suit or replevin suit? Answer: He cannot. B must be made a defendant. B is an indispensable party in relation to S. The foreclosure or replevin is premised on the default of B, the debtor. S would have no right to foreclose the mortgage or repossess the car without establishing the default of B unless the obligation of B to S was assigned to D with the consent of S thereby novating the obligation by a change in the debtor.

4. A transferee of a property pendente lite is not an indispensable party, as it would in any event be bound by the judgment against his predecessor (Santiago Land Development Corporation v. Court of Appeals, 267 SCRA 79, 87).

5. The person whose right to the office is challenged is an indispensable party. No action can proceed unless he is joined (Galarosa v. Valencia, 227 SCRA 726).

6. In an action for reconveyance of a property, the persons against whom reconveyance is asserted are indispensable parties (Lozano v. Balesteros, 195 SCRA 681, 690).

Unwilling co-plaintiff An unwilling co-plaintiff is a party who is supposed to be a

plaintiff but whose consent to be joined as a plaintiff cannot be obtained as when he refuses to be a party to the action. Under Sec. 10 of Rule 3, said unwilling co-plaintiff (a) may be made a defendant, and (b) the reason therefor shall be stated in the complaint.

Alternative defendants (Bar 2011) 1. Where the plaintiff cannot definitely identify who among

two or more persons should be impleaded as a defendant,


he may join all of them as defendants in the alternative. Under Sec. 13 of Rule 3, “where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other (Sec. 13, Rule 3, Rules of Court). Just as the rule allows a suit against defendants in the alternative, the rule also allows alternative causes of action and alternative defenses (Sec. 2, Rule 8, Rules of Court).

2. Assume that Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered injuries but does not know with certainty which vehicle caused the mishap. What should Mr. X do if he wants to sue? Answer: He should sue the vehicle drivers/owners in the alternative.

3. P sent some goods to D pursuant to a contract. The goods were delivered to E, the known agent of D. D did not pay P. D contends that he has not received the goods. P claims otherwise and insists that D had repeived the goods. Should P sue D or should he sue E? Answer: P should sue both but in the alternative.

4. Plaintiff may sue the shipping company and the arrastre operator alternatively for the recovery of damages to goods shipped through a maritime vessel (Rizal Surety & Insurance Company v. Manila Railroad Corporation, 70 SCRA 187).

Misjoinder and non-joinder of parties (Bar 2009; 2010) 1. A party is misjoined when he is made a party to the

action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action.

2. Under the Rules neither misjoinder nor non-joinder of parties is a ground for the dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. If there is any claim against a party misjoined, the same may be severed and proceeded


with separately (Sec. 11, Rule 3, Rules of Court; Almendras v. Court of Appeals, 293 SCRA 540, 544). Misjoinder of parties does not involve questions of jurisdiction and not a ground for dismissal (Republic v. Herbieto, 459 SCRA 183,195).

3. Even if neither misjoinder nor non-joinder is a ground for dismissal of the action, the failure to obey the order of the court to drop or add a party is a ground for the dismissal of the complaint under Sec. 3, Rule 17 of the Rules of Court.

4. The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later at the option of the plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake. And this is the reason why the rule ordains that the dropping is “on such terms as are just” (Lim Tan Hu v. Ramolete, 66 SCRA 425, 449-450).

Unknown identity or name of the defendant Whenever the identity or name of the defendant is unknown,

he may be sued as the unknown owner heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly (Sec. 14, Rule 3, Rules of Court).

Effect of death of a party on the attorney-ciient relationship The death of the client extinguishes the attorney-ciient

relationship and divests a counsel of his authority to represent the client. Accordingly, a dead client has no personality and cannot be represented by an attorney (Lavifia v. Court of Appeals, 171 SCRA 691, 702). Neither does he become the counsel of the heirs of the deceased unless his services are engaged by said heirs (Lawas v. Court of Appeals, 146 SCRA 173,176).


Duty of counsel upon the death of his client Whenever a party to a pending action dies, it is the duty of the

counsel of the deceased party to inform the court of such fact within thirty (30) days after such death. The counsel has also the obligation to give the name and address of the legal representative of the deceased. This duty is mandatory and failure to comply with this duty is a ground for disciplinary action (Sec. 16, Rule 3, Rules of Court; Cordova v. Tornilla, 246 SCRA 430, 432; Heirs of Maximo Regoso v. Court of Appeals, 211 SCRA 348, 351). Note that this duty is imposed upon the counsel of the deceased party, not upon the counsel of the adverse and surviving party.

Action of court upon notice of death; effect of death on the case (Bar 2009)

1. Upon receipt of the notice of death, the court shall determine whether or not the claim is extinguished by such death. If the claim survives, the court shall order the legal representative or representatives of the deceased to appear and be substituted for the deceased within thirty (30) days from notice (Sec. 16, Rule 3, Rules of Court). The substitution of the deceased would not be ordered by the court in cases where the death of the party would extinguish the action because substitution is proper only when the action survives (Suggested reading: Aguas v. Llamas, 5 SCRA 959; Bar 1999).

2. Under the present rule, the heir of the deceased may be allowed to be substituted for the deceased. In such a case, there is no more need to require the appointment of an executor or administrator. If there is an heir and the heir is a minor, the court may appoint a guardian ad litem (Sec. 16, Rule 3, Rules of Court).

3. It is possible that the court may order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. This may happen in any of the following situations: (a) the counsel for the deceased does not name a legal representative, or (b) there is a representative named but he fails to appear within the specified


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period. All court charges in procuring such appointment, if defrayed by the opposing party may be recovered as costs (Sec. 16, Rule 3, Rules of Court).

When there is no need to procure an executor or administrator 1. Under the second paragraph of Sec. 16 of Rule 3, “x x x.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator.. .”

2. The second paragraph of the rule is plain and explicit. The heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased. The previous pronouncement of the Court in Lawas v. Court of Appeals, 146 SCRA 173,178, that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true. Thus, the heirs do not need to first secure the appointment of an administrator of the estate of the deceased because from the very moment of death, they stepped into the shoes of the deceased and acquired his rights as devisee/legatee. Said heirs may designate one or some of them as their representative before the trial court (San Juan v. Cruz, 497 SCRA 410, 425-426).

No requirement for service of summons 1. Service of summons is not required to effect a sub-

stitution. Nothing in Sec. 16 of Rule 3 mandates service of summons. Instead of service of summons the court shall, under the authority of the same provision, order the legal repre


sentative of the deceased to appear and be substituted for the said deceased within thirty (30) days from notice (Bar 1999).

2. By virtue of the same rule, it is significant to remem ber that it is not the amendment of the pleading, but the order of substitution and its service that are the initial steps towards the substitution of the deceased by his representative or heir (Bar 1999).

Purpose and importance of substitution of the deceased 1. The purpose behind the rule on substitution of parties is

the protection of the right of every party to due process. It is to ensure that the deceased would continue to be properly represented in the suit through the duly appointed legal representative of the estate (Torres v. Court of Appeals, 278 SCRA 793, 811; Vda. De Salazar v. Court of Appeals, 250 SCRA 305, 308).

2. Non-compliance with the rules on substitution of a deceased party renders the proceedings of the trial court infirm because the court acquired no jurisdiction over the person of the legal representative of heirs of the deceased (Brioso v. Rili- Mariano, 396 SCRA 549, 556-557) because no man should be affected by a proceeding to which he is a stranger.

A party to be affected by a personal judgment must have a day in court and an opportunity to be heard (Suggested readings: Vda. de Haberer v. Court of Appeals, 104 SCRA 534; Fereira v. Vda. De Gonzales, 104 Phil. 143; Torres v. Court of Appeals, 278 SCRA 793).

However, in an ejectment case, the non-substitution of the deceased by his legal representatives because of the failure of counsel to inform the court of the death of his client does not deprive the court of jurisdiction. The decision of the court is nevertheless, binding upon the successors-in-interest of the deceased. A judgment in an ejectment case may be enforced not only against defendants herein but also against the members of their family, their relatives, or privies who derived their right of possession from the deceased defendant (Florendo, Jr. v. Coloma, 129 SCRA 304, 309-311; Bar 2011).


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3. Formal substitution is however, not necessary when the heirs themselves voluntarily appeared in the action, participated therein and presented evidence in defense of deceased defendant (Vda. de Salazar v. Court of Appeals, 250 SCRA 305, 309). In the absence of a formal substitution, the court can acquire jurisdiction over the person of the decedent’s representative if he voluntarily submits himself to said jurisdiction (Cordova v. Tornilla, 246 SCRA 430, 432).

Examples of actions which survive the death of a party (Bar 2011) 1. Certain actions survive the death of a party such as:

(a) actions to recover real and personal property from the estate;

(b) actions to enforce alien thereon; and (c) actions to recover damages for an injury to person or

property (Aguas v. Llemos, 5 SCRA 959, 961). 2. The action to recover damages arising from delicts also

survive. Under the last paragraph of Sec. 4 of Rule 111, if the accused

dies before arraignment, while the criminal case shall be dismissed, such dismissal is without prejudice to any civil action the offended party may file against the estate of the deceased. Under the first paragraph of the same provision, the death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted pursuant to the Rules or which may thereafter be instituted to enforce civil liability arising from other sources of obligations may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. Under the same provision, the heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.


3. Actions based on the tortious conduct of the defendant survive the death of the latter (Melgar v. Buenviaje, 179 SCRA 196,201; Board of Liquidators v. Kalaw, 20 SCRA 987, 1000).

4. An action for quieting of title with damages is an action involving real property. It survives and the claim is not extinguished by the death of a party (Saligumba v. Calanog, 573 SCRA 8,17).

5. An ejectment case survives the death of a party. It continues until judgment because the issue concerning the illegality of the defendant’s possession is still alive, and upon its resolution depends the corollary issue of whether and how much damages may be recovered (Tanhueco v. Aguilar, 33 SCRA 233, 237; Vda. de Salazar v. Court of Appeals, 250 SCRA 305, 311; Florendo, Jr. v. Coloma, 129 SCRA 304, 310).

6. Actions for the recovery of money, arising from a contract express or implied are not extinguished by the death of the defendant (Sec. 20, Rule 3, Rules of Court; Bar 2000).

Note: If the action does not survive (like the purely personal actions of support, annulment of marriage, and legal separation), the proper action of the court is to simply dismiss the case. It follows then that substitution will not be required.

Actions for the recovery of money on contractual claims 1. When the action is for the recovery of money arising from

contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, the court shall not dismiss the suit. The case shall be allowed to continue until entry of final judgment (Sec. 20, Rule 3, Rules of Court). Since the action survives the death of the defendant, substitution of the defendant shall be done following the procedure prescribed by the Rules (See Sec. 16 of Rule 3, Rules of Court for the procedure). If the plaintiff obtains a favorable judg-ment, said judgment shall be enforced following the procedure provided for in the Rules for prosecuting claims against the


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estate of a deceased person (Sec. 20, Rule 3, Rules of Court). Because of the rule mandating compliance with the rule for prosecuting claims against the estate, the prevailing plaintiff is not supposed to file a motion for the issuance an order and writ of execution of the judgment. (Bar 2009)

2. Since the action is one for recovery of money, the judgment favorable to the plaintiff shall be filed as a money claim against the estate of the decedent (Rule 86, Rules of Court).

Incompetency or incapacity of a party during the pendency of the action

In case a party becomes incapacitated or incompetent during the pendency of the action, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated party with the assistance of his legal guardian or guardian ad litem (Sec. 18, Rule 3, Rules of Court).

Transfer of interest In case of transfer of interest, the action may be continued by

or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party (Sec. 19, Rule 3, Rules of Court).

Indigent parties 1. A party may be authorized to litigate as an indigent if the

court is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family (Sec. 21, Rule 3, Rules of Court).

The application and the hearing to litigate as an indigent litigant is made ex parte (Sec. 21, Rule 3, Rules of Court).

2. If one is authorized to litigate as an indigent, such authority shall include an exemption from the payment of (a) docket fees; (b) other lawful fees; and (c) transcripts of


stenographic notes, which the court may order to be furnished him (Sec. 21, Rule 3, Rules of Court).

However, the amount of the docket and other lawful fees, which the indigent was exempt from paying, shall be lien on the judgment rendered in the case favorable to the indigent. A lien on the judgment shall not arise if the court provides otherwise (Sec. 21, Rule 3, Rules of Court).

3. While the rule allows an ex parte application and hearing to litigate as an indigent, at any time before judgment is rendered by the trial court, any adverse party may contest the grant of the authority to a party to litigate as an indigent. If the court should determine that the party declared as an indigent is in fact a person with sufficient income and property, the proper docket and lawful fees shall be assessed and collected by the clerk of court (Sec. 21, Rule 3, Rules of Court).

In case the grant of the authority to litigate as an indigent is contested by any party, the determination of the court on whether or not the grant of the earlier authority is proper is to be made after hearing, not ex parte (Sec. 21, Rule 3, Rules of Court).

Role of the ‘Solicitor General’ 1. The rule is that only the Solicitor General can bring and

defend actions on behalf of the Republic of the Philippines and that actions filed in the name of the Republic or its agencies and instrumentalities, if not initiated by the Solicitor General will be summarily dismissed. The authority of the Solicitor General is embodied in Sec. 35(1), Chapter 12, Title III, and Book IV of the Administrative Code of 1987 (Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, 382 SCRA 552, 565).

2. Also, in any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rule or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him (Sec. 22, Rule 3, Rules of Court).


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3. In criminal actions brought before the Court of Appeals or the Supreme Court, the authority to represent the State is solely vested in the OSG. This is pursuant to Sec. 35(1), Chapter 12, Title III, Book III of the Administrative Code of 1987, as amended, providing that the OSG shall represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings. Only the Solicitor General may bring or defend actions on behalf of the People of the Philippines once such actions are brought before the Court of Appeals or Supreme Court (Cooperative Development, supra).

Also, under Sec. 5 of Rule 110 of the Revised Rules on Criminal Procedure, as amended, “All criminal actions, either commenced by complaint or by information, shall be prosecuted under the direction and control of a public prosecutor” (People v. Gabriel, 510 SCRA 197, 202).

Suit by or against spouses Husband and wife shall sue or be sued jointly except as

provided by law (Sec. 4, Rule 3, Rules of Court). An instance when a spouse need not be joined in a suit involving the other is when the litigation pertains to an exclusive property of a spouse. In such a case, the owner-spouse may appear alone in court to litigate with regard to the same (Art. I l l , Family Code of the Philippines).

There may be instances when despite the separation of property, one spouse may end up being sued and be held answerable for the liabilities incurred by the other spouse because “The liability of the spouses to creditors for family expenses shall however, be solidary” (Art. 146, Family Code of the Philippines). Under a solidarity liability, each one of the spouses is bound to render entire compliance of the obligation (Art. 1207, Art. 1216, Civil Code of the Philippines).

Class suit; requisites 1. A class suit is an action where one or more may sue for

the benefit of all if the requisites for said action are complied with.


2. An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the attendant facts (Mathay v. Consolidated Bank & Trust Company, 58 SCRA 559; Borlasa v. Polistico, 47 Phil. 345).

3. For a class suit to prosper, the following requisites must concur:

(a) The subject matter of the controversy must be of common or general interest to many persons;

(b) The persons are so numerous that it is imprac-ticable to join all as parties;

(c) The parties actually before the court are sufficiently numerous and representative as to fully protect the interests of all concerned; and

(d) The representatives sue or defend for the benefit of all (Sec. 12, Rule 3, Rules of Court; Sulo ng Bayan, Inc. v. Araneta, 72 SCRA 347, 356-357).

Commonality of interest in the subject matter 1. A class suit does not require a commonality of interest in

the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. The ‘subject matter’ of the action is meant the physical, the things real or personal, the money, lands, chattels, and the like, in relation to the suit which is prosecuted and not the delict or wrong committed by the defendant. It is not also a common question of law that sustains a class suit but a common interest in the subject matter of the controversy (Mathay v. Consolidated Bank & Trust Co., 58 SCRA 559, 571).

2. There is no class suit in an action filed by four hundred residents initiated through a former mayor, to recover damages sustained due to their exposure to toxic wastes and fumes emitted by the cooking gas plant of a corporation located in the town. Each of the plaintiffs has a separate and


distinct injury not shared by other members of the class. Each supposed plaintiff has to prove his own injury. There is no common or general interest in the injuries allegedly suffered by the members of the class (Bar 1994).

3. There is no class suit in an action for damages filed by the relatives of the fatalities in a plane crash. There is no common or general interest in the injuries or death of all passengers in the plane. Each has a distinct and separate interest which must be proven individually (Bar 1991).

No class suit when interests are conflicting When the interests of the parties in the subject matter are

conflicting, a class suit will not prosper. Hence, an action brought by seventeen (17) residents of a town with a population of two thousand four hundred sixty (2,460) persons to recover possession of a holy image was held not to qualify as a class suit because the plaintiffs did not represent membership of the churches they purport to represent and that the interests of the plaintiffs conflict with those of the other inhabitants who were opposed to the recovery (Ibafies v. Roman Catholic Church, 12 Phil. 227, 241).

No class suit by a corporation to recover property of its members A non-stock corporation may not institute in behalf of its

individual members for the recovery of certain parcels of land allegedly owned by its members and for the nullification of the transfer of certificates of title issued in favor of defendants. The corporation being an entity separate and distinct from its members has no interest in the individual property of its members unless transferred to the corporation. Absent any showing of interests, a corporation has no personality to bring an action for the purpose of recovering property, which belongs to the members in their personal capacities. Moreover, “a class suit does not lie in actions for the recovery of property where several persons claim ownership of their respective portions of property, as each one could allege and


prove his respective right in a different way for each portion of the land, so that they cannot all be held to have identical title through acquisitive prescription” (Sulo ng Bayan, Inc. v. Araneta, supra; Bar 1978).

No class suit to recover real property individually held 1. A class suit would not lie where each of the parties has an

interest only in the particular portion of the land he is occupying and not in the portions individually occupied by the other defendants (Ortigas & Company Limited Partnership v. Ruiz, 148 SCRA 326, 339 citing Berses v. Villanueva, 25 Phil. 473).

2. A class suit does not lie in an action for recovery of real property where separate portions of the same parcel of land were occupied and claimed individually by different parties to the exclusion for each other, such that the different parties had determinable, though undivided interest in the property in question since they do not have a common or general interest in the subject matter of the controversy (Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 571- 572).

No class suit to recover damages for personal reputation There is no class suit in an action filed by associations of sugar

planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others (Newsweek, Inc. v. Intermediate Appellate Court, 142 SCRA 171,176-177).

Common or general interest in the environment and natural resources

There is a class suit in an action filed by minors represented by their parents, in behalf of themselves and others who are equally concerned about the preservation of the country’s


resources, their generation as well as generations yet unborn, in a suit filed to compel the Secretary of the Department of Environment and Natural Resources to (1) cancel all existing timber license agreements in the country; and (2) cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. The court agreed that the subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. Hence, the Court found that all the requisites for the filing of a valid class suit under Sec. 12, Rule 3 of the Revised Rules of Court are present in the action.

In what could be deemed a novel ruling, the Court held:

“[Th]e [Court] find[s] no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergeneration- al responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as herein-after expounded, considers the “rhythm and harmony of nature.” Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, de-velopment and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to pre-serve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environ-ment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come” (Oposa v. Factoran, 224 SCRA 792, 802-803).


Dismissal or compromise of a class suit A class suit shall not be dismissed or compromised without the

approval of the court (Sec. 2, Rule 17, Rules of Court).

— oOo —

Chapter IV

PLEADINGS AND MOTIONS I. PLEADINGS

A. General Principles On Pleadings

Nature of pleadings 1. Pleadings are the written statements of the respective

claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6, Rules of Court). Under the Rules of Court, pleadings cannot be oral because they are clearly described as “written” statements. Also, the pleadings contain the “claims” and “defenses” of the parties.

2. Pleadings are the allegations made by the parties to an action or proceeding for the purpose of presenting the issue to be tried and determined, whether such issue is of law or of fact. Pleadings are also considered the formal statements by the parties of the operative facts which constitute their respective claims and defenses (61A Am Jur 2d § 1,1981).

Necessity and purpose of pleadings 1. It is necessary, in order to confer jurisdiction on a court,

that the subject matter be presented for its consideration in a mode sanctioned by law and this is done by the filing of a complaint or other pleading. Unless a complaint or other pleading is filed, the judgment of a court of record is void and subject to collateral attack even though it may be a court which has jurisdiction over the subject matter referred to in the judgment (61A Am Jur 2d, § 2,1981).

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2. Pleadings are intended to secure a method by which the issues may be properly laid before the court (Santiago v. De los Santos, 61 SCRA 146,150).

3. Pleadings are designed to develop and present the precise points in dispute between the parties. Their office is to inform the court and the parties of the facts in issue. The object of pleadings in a more restricted and commonly accepted sense is to notify the opposite party of the facts which the pleader expects to prove, so that he may not be misled in the preparation of his case (61A Am Jur 2d, §3, 1981).

Construction of pleadings 1. In this jurisdiction, all pleadings shall be liberally

construed so as to do substantial justice (Concrete Aggregate Corporation v. Court of Appeals, 266 SCRA 88, 95).

Pleadings should receive a fair and reasonable construction in accordance with the natural intendment of the words and language used and the subject matter involved. The intention of the pleader is the controlling factor in construing a pleading and should be read in accordance with its substance, not its form (71 C.J.S., Pleading, §53).

2. While it is the rule that pleadings should be liberally construed, it is also a rule that a party is strictly bound by the allegations, statements or admissions made in his pleadings and cannot be permitted to take a contradictory position.

Thus, it has been held that an admission in the pleadings cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether objection is interposed or not (Santiago v. De los Santos, 61 SCRA 146,149).

Construction of ambiguous allegations in pleadings In case there are ambiguities in the pleadings, the same must

be construed most strongly against the pleader and that no presumptions in his favor are to be indulged in. This rule

CHAPTER IV PLEADINGS AND MOTIONS

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proceeds from the theory that it is the pleader who selects the language used and if his pleading is open to different constructions, such ambiguities must be at the pleader’s peril (61 Am Jur, Pleading, § 57).

System of pleading in the Philippines The system of pleading used in the Philippines is the Code

Pleading following the system observed in some states of the United States. This system is based on codified rules or written set of procedure as distinguished from common law procedure (Marquez and Gutierrez Lora v. Varela, 92 Phil. 373).

Pleadings allowed by the Rules of Court (Bar 1996) The following are the pleadings allowed by the Rules of Court:

(a) complaint; (b) answer; (c) counterclaim; (d) crossclaim; (e) third (fourth, etc.)-party complaint; (f) complaint- in-intervention; and (g) reply (Sec. 2, Rule 6, Rules of Court).

Pleadings allowed under the Rules on Summary Procedure 1. When a case falls under the Rules on Summary

Procedure, the only pleadings allowed to be filed are: (a) complaint; (b) compulsory counterclaim pleaded in the answer; (c) cross-claim pleaded in the answer; and (d) answers thereto (Sec. 3[A] II, Rules on Summary Procedure).

2. A permissive counterclaim (Sec. 3[A] II, Rules on Summary Procedure) third-party complaint, reply and pleading-in-intervention are prohibited under the Rules on Summary Procedure (Sec. 19, IV, Rules on Summary Procedure).

Pleadings in the Rule of Procedure For Small Claims Cases 1. Following the Rule of Procedure for Small Claims Cases

(A.M. No. 08-8-7-SC, as amended), the pleadings are expressed in specific forms described therein.

For instance, instead of filing a complaint as in an ordinary civil action, a small claims action is commenced by filing with the court an accomplished and verified Statement


of Claim (Form 1-SCC). No other formal pleading is necessary to initiate a small claims action (Sec. 5, Rule of Procedure For Small Claims Cases, A.M. No. 08-8-7-SC).

2. Instead of filing an answer, the defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response (Form 3-SCC) (Sec. 10, Sec. 11, Rule of Procedure For Small Claims Cases, A.M. No. 08-8-7-SC, as amended). Any claim which the defendant has against the plaintiff shall be filed as a counterclaim in the Response where the counterclaim is compulsory as described in Sec. 13 of the Rule of Procedure For Small Claims Cases. The defendant may however, elect to file a counterclaim (permissive) against the plaintiff even if does not arise out of the transaction or occurrence that is the subject of the plaintiffs claim provided its amount and nature are covered by the herein Rule (Sec. 13, Rule of Procedure For Small Claims Cases, A.M. No. 08-8-7- SC, as amended).

3. Aside from the prohibited motions, the following pleadings or petitions shall not be allowed in the cases covered by the Rule of Procedure For Small Claims Cases:

(a) Petition for relief from judgment; (b) Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court; (c) Reply; (d) Third-party complaints; and (e) Interventions (Sec. 14, Rule of Procedure For

Small Claims Cases, A.M. No. 08-8-7-SC, as amended).

Pleadings not allowed in a petition for a writ of amparo or habeas data

In a petition for a writ of amparo or habeas data, in addition to certain prohibited motions, the following pleadings and petitions are not allowed:

(a) Counterclaim; (b) Cross-claim; (c) Third-party complaint;


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(d) Reply; and (e) Intervention (Sec. 11, The Rule on the Writ of Amparo,

October 24, 2007; Sec. 13, The Rule on Habeas Data, February 2, 2008). The same provisions prohibit the filing of a petition for certiorari, mandamus or prohibition against any interlocutory order.

Pleadings in the Rules of Procedure For Environmental Cases 1.

he pleadings that may be filed are the (a) complaint; (b) answer which may include a compulsory counterclaim and cross-claim (Sec. 1, Rule 2, Rules of Procedure For Environmental Cases, A.M. No. 09-6-8-SC). A reply and rejoinder and a third-party complaint are prohibited pleadings (Sec. 2, Rule 2, Rules of Procedure For Environmental Cases, A.M. No. 09- 6-8-SC).

2. A pleading in intervention may also be filed as in a citizen suit. Under Sec. 5, Rule 2, of the Rules of Procedure For Environmental Cases, upon the filing of a citizen suit, the court shall issue an order requiring all interested parties to manifest their intention to intervene in the case within fifteen (15) days from notice.

Nature of the pleading; how determined Elementary is the rule of procedure that the nature of a

pleading is to be determined by the averments in it and not by its title (Bank of Commerce v. Perlas-Bernabe, 634 SCRA 107, 118, October 20, 2010).

Variance between caption and allegations in the pleading 1. It is not the caption of the pleading but the allegations

therein which determine the nature of the action and the court shall grant relief warranted by the allegations and proof even if no such relief is prayed for (Solid Homes, Inc. v. Court of Appeals, 271 SCRA 157,164; Banco Filipino Savings & Mortgage Bank v. Court of Appeals, 332 SCRA 241, 253; Lorbes v. Court of Appeals, 351 SCRA 716, 730). Thus, a com


plaint captioned as unlawful detainer is actually an action for forcible entry where the allegations show that the possessor of the land was deprived of the same by force, intimidation, strategy, threat or stealth. Likewise, a complaint for unlawful detainer is actually an action for collection of a sum of money where the allegations of the complaint do not disclose that the plaintiff demanded upon the defendant to vacate the property but merely demanded to pay the rentals in arrears.

2. In one case, while the complaint was denominated as one for specific performance, the allegations of the complaint and the relief prayed for actually and ultimately sought for the execution of a deed of conveyance to effect a transfer of ownership of the real property in question. The action therefore, is a real action (Gochan v. Gochan, 372 SCRA 256, 263-264). Also, although the complaint was denominated as one for reformation of the instrument, the allegations of the complaint did not preclude the court from passing upon the real issue of whether or not the transfer between the parties was a sale or an equitable mortgage as the said issue has been squarely raised in the complaint and had been the subject of arguments and evidence of the parties (Lorbes v. Court of Appeals, 351 SCRA 716).

3. Because the allegations of the pleading and not the title of the pleading determine the cause of action (Gochan v. Gochan, 372 SCRA 256, 263-264), if the petitioner filed before the Supreme Court a petition captioned “Petition for Certiorari” based on Rule 65 but the allegations state that the issues raised are pure questions of law, the cause of action is not one based on Rule 65 which reuses issues of jurisdiction, but on Rule 45 which raises pure questions of law (See for related reading: De Castro v. Fernandez, Jr., 515 SCRA 682).

B. Parts Of A Pleading Caption of the pleading

The caption contains the following: (a) the name of the court; (b) the title of the action; and (c) the docket number, if assigned (Sec. 1, Rule 7, Rules of Court).


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Title of the action The title of the action contains the names of the parties whose

participation in the case shall be indicated. This means the parties shall be indicated as either plaintiff or defendant. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication whether there are other parties. Example: Pedro Reyes, et al. (Sec. 1, Rule 7, Rules of Court).

Body of the pleading 1. The body of the pleading sets forth its designation, the

allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading (Sec. 2, Rule 7, Rules of Court).

2. The allegations in the body of the pleading shall be divided into paragraphs and shall be so numbered for ready identification. This numbering scheme is significant because in subsequent pleadings, a paragraph may be referred to only by its number without need for repeating the entire allegations in the paragraph. Each paragraph shall contain a statement of a single set of circumstances so far as that can be done with convenience (Sec. 2, Rule 7, Rules of Court).

Headings; designation of causes of actions joined in one complaint

When two or more causes of action are joined, the first cause of action shall be prefaced with the words, “first cause of action,” or the second cause of action by the words, “second cause of action,” and so on for the others (Sec. 2, Rule 7, Rules of Court).

Allegations of ultimate facts 1. Every pleading, including the complaint, is not supposed

to allege conclusions. A pleading must only aver facts because conclusions are for the courts to make.


2. Not all facts may be allowed as averments in a pleading. Under Sec. 1 of Rule 8, every pleading shall omit from its allegations statements of mere evidentiary facts. The rule prohibiting allegations of evidentiary facts in a pleading is not difficult to understand. Evidentiary matters are to be presented during the trial of the case, not in the pleadings of the parties.

3. The rule requires that a pleading should contain only allegations of “ultimate facts,” i.e., the facts essential to a party’s cause of action or defense (Sec. 1, Rule 8, Rules of Court) or such facts as are so essential that they cannot be stricken out without leaving the statement of the cause of action inadequate (Cahete v. Genuino Ice Company, 542 SCRA 206,217).

The ultimate facts are to be stated in a methodical and logical form and in a plain, concise and direct manner (Sec. 1, Rule 8, Rules of Court; See Philippine Bank of Communications v. Go, 642 SCRA 693, 706, February 14, 2011).

Allegations in an environmental case The complaint shall state that it is an environmental case and

the law involved (Sec. 3, Rule 2, Rules of Procedure for Environmental Cases). This allegation is aside from the allegation of the ultimate facts constituting the cause of action of the plaintiff.

Relief 1. Following the averments of the cause of action of the

plaintiff, the complaint must contain a statement of the relief sought from the court and to which he believes he is entitled. This portion of the complaint is oftentimes referred to as the “prayer.”

2. The rule (Sec. 2[c], Rule 7) requires that the pleading shall specify the relief sought although the statement may include a “general prayer for such further or other relief as may be deemed just or equitable.”

3. It was ruled that under Sec. 2 (c), Rule 7 of the Rules of Court, “a court can grant the relief warranted by the


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allegation and the proof even if it is not specifically sought by the injured party; the inclusion of a general prayer may justify the grant of a remedy different from or together with the specific remedy sought, if the facts alleged in the complaint and the evidence introduced so warrant” (Prince Transport, Inc. v. Garcia, 639 SCRA 312, 330, January 12, 2011).

4. The relief or prayer, although part of the complaint, does not constitute a part of the statement of the cause of action and the plaintiff is entitled to as much relief as the facts may warrant (UBS Marketing Corporation v. Court of Appeals, 332 SCRA 534, 545).

It is the material allegations of the complaint, not the legal conclusions made therein or the prayer that determines the relief to which the plaintiff is entitled (Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241, 253).

5. To reiterate, it is important to remember that the court may grant a relief not prayed for as long as the relief is warranted by the allegations of the complaint and the proof (Lorbes v. Court of Appeals, 351 SCRA 716, 730).

Signature and address 1. Every pleading must be signed by the plaintiff or counsel

representing him stating in either case his address. This address should not be a post office box (Sec. 3, Rule 7).

2. In the absence of a proper notice to the court of a change of address, service upon the parties must be made at the last address of their counsel of record (Garrucho v. Court of Appeals, 448 SCRA 165, 172).

3. A signed pleading is one that is signed either by the party himself or his counsel. Sec. 3, Rule 7 is clear on this matter. It requires that a pleading must be signed by the party or counsel representing him. Therefore, only the signature of either the party himself or his counsel operates to validly convert a pleading from one that is unsigned to one that is signed (Republic v. Kenrick Development Corporation, 498 SCRA 220, 229).


Effect of an unsigned pleading The signature in a pleading is important for it to have a legal

effect. Under the Rules of Court (Sec. 3, Rule 7), “an unsigned pleading produces no legal effect.” The court however, is authorized to allow the pleader to correct the deficiency if the pleader shows to the satisfaction of the court, that the failure to sign the pleading was due to mere inadvertence and not to delay the proceedings (Sec. 3, Rule 7, Rules of Court).

Significance of the signature of counsel (Bar 1996) 1. The signature of a counsel in a pleading is significant.

His signature constitutes a certificate by him that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief there is good ground to support it, and (c) that it is not interposed for delay (Sec. 3, Rule 7, Rules of Court).

2. It has been held that counsel’s authority and duty to sign a pleading are personal to him. “He may not delegate it to just any person because the signature of counsel constitutes an assurance by him that he has read the pleading; that to the best of his knowledge, information and belief, there is a good ground to support it; and that it is not interposed for delay. Under the Rules of Court, it is counsel alone, by affixing his signature, who can certify to these matters.”

The Court added:

“The preparation and signing of a pleading constitute legal work involving practice of law which is reserved exclusively for the members of the legal profession. Accordingly however, counsel may delegate the signing of a pleading to another lawyer but cannot do so in favor of one who is not. In so ruling, the Court cites The Code of Professional Responsibility, the pertinent provision on which provides:

Rule 9.01 — A lawyer shall not delegate to any un-qualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.


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A signature by agents of a lawyer amounts to signing by unqualified persons, something the law strongly proscribes. Therefore, the blanket authority entrusted to just anyone is void. Any act taken pursuant to that authority is likewise void. Hence, there is no way it could be cured or ratified by counsel” (Republic v. Kenrick Development Corporation, 498 SCRA 220, 230).

When counsel is subject to disciplinary action in connection with pleadings

A counsel shall be subject to disciplinary action in the following cases: (a) when he deliberately files an unsigned pleading; (b) when he signs a pleading in violation of the Rules; (c) when he alleges in the pleading scandalous or indecent matter; or (d) when he fails to promptly report to the court a change of his address (Sec. 3, Rule 7, Rules of Court).

Verification in a pleading Pleadings need not be under oath, verified or accompanied by

affidavit, except when so required by law or a rule (Sec. 4, Rule 7, Rules of Court).

How a pleading is verified 1. A pleading is verified by an affidavit. This affidavit

declares that: (a) the affiant has read the pleading, and (b) that the allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7, Rules of Court, as amended by A.M. No. 00-2-10, May 1, 2000).

2. The verification requirement is “deemed substantially complied with when one who has an ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct” (Vda. De Formoso v. Philippine National Bank, 650 SCRA 35, 44, G.R. No. 154704, June 1, 2011).

Significance of a verification The verification requirement is significant, as it is intended to

secure an assurance that the allegations in a pleading


are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith (Sarmiento v. Zaratan, 514 SCRA 246, 257; Bank of the Philippine Islands v. Court of Appeals, 569 SCRA 510, 523).

Effect of lack of a verification (Bar 2011) 1. A pleading required to be verified but lacks the proper

verification shall be treated as an unsigned pleading (Sec. 4, Rule 7, Rules of Court). Hence, it produces no legal effect (Sec. 3, Rule 7, Rules of Court). The lack of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua v. Torres, 468 SCRA 358, 365).

A verification is not proper when the verification does not comply with the requirement of the rule. For instance, a pleading required to be verified but which contains a verification based on “information and belief’ or upon “knowledge, information and belief,” shall be treated as an unsigned pleading (Sec. 4, Rule 7, Rules of Court).

2. It has however, been held that the absence of a verifi-cation or the non-compliance with the verification requirement does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corporation v. Cordillera Caraballo Mission, Inc., 469 SCRA 381, 384; Micro Sales Operation Network v. NLRC, 472 SCRA 328) and non-compliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaratan, 514 SCRA 246, 258; Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011).

More recently, the Court declared that as to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The Court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby (Vda. De Formoso v. Philippine National Bank, 650 SCRA 35, G.R. No. 154704, June 1,2011).


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3. The absence of a verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Company, Inc. v. NLRC, 272 SCRA 737, 743). The court may order the correction of the pleading or act on an unverified pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with to serve the ends of justice (Robert Development Corporation v. Quitain, 315 SCRA 150; Joson v. Torres, 290 SCRA 279, 299).

Other requirements 1. All pleadings, motions, and papers filed in court by

counsel shall bear, in addition to counsel’s current Professional Tax Receipt Number (PTR), counsel’s current IBP Official Receipt Number indicating its date of issue. Pleadings, motions, and papers which do not comply with this requirement may not be acted upon by the court, without prejudice to whatever disciplinary action the court may take against the erring counsel who shall likewise be required to comply with the requirement within five (5) days from notice. Failure to comply with such requirement shall be a ground for further disciplinary sanction and for contempt of court (Circular No. 10, July 24,1985; Bar Matter No. 287, September 26, 2000).

2. On November 12, 2002 the Supreme Court granted the request of the Board of Governors of the IBP and the Sangguniang Panlalawigan of Ilocos Norte to require all lawyers to indicate their Roll of Attorneys Number in all papers and pleadings filed injudicial and quasi-judicial bodies in addition to the previously required current Professional Tax Receipt (PTR) and the IBP Official Receipt Number. The requirement was meant to protect the public by making it easier to detect impostors who represent themselves as members of the bar. Non-compliance with this requirement has the same effect as the failure to indicate counsel’s IBP Receipt Number. This requirement is directed only to lawyers and is not to be construed as precluding a party who is not


a lawyer from signing a pleading himself (Bar Matter 1132, April 1, 2003).

3. All practicing members of the bar are required to indicate in all pleadings filed before the courts or quasijudicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records (Bar Matter No. 1922 En Banc Resolution, June 3, 2008). Per En Banc Resolution of the Supreme Court dated September 2, 2008, the effectivity date of the implementation of this rule was moved from August 25, 2008 to January 1, 2009.

Certification against forum shopping (Bar 2000; 2009; 2010) 1. The certification against forum shopping is a sworn

statement in which the plaintiff or principal party certifies in a complaint or initiatory pleading to the following matters:

(a) that he has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;

(b) that if there is such other pending action or claim, a complete statement of the present status thereof; and

(c) that if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule 7, Rules of Court; See also Asia United Bank v. Goodland Company Inc., 637 SCRA 691, 696, December 8, 2010).

2. The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional since jurisdiction over the subject of the action is conferred by law (Robert Development Corporation v. Quitain, 315 SCRA 150,160).


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Applicability to special civil actions The Court held that the rule requiring a certification against

forum shopping applies as well to special civil actions since a special civil action is governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. Such specific rule for example, appears under Rule 46, Sec. 3 which requires that every petition for certiorari be accompanied by a sworn certification of nonforum shopping (Wacnang v. Comelec, 569 SCRA 799, 809).

Meaning of forum shopping 1. The concept of forum shopping has been described in

various ways, to wit: (a) There is forum shopping “when a party repetitively

avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court” (Asia United Bank v. Good- land Company, Inc., G.R. No. 191388, March 9, 2011).

(b) There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by appeal or certiorari in another. There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action (Huibonhoa v. Concepcion, 497 SCRA 562, 569-570).

(c) Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.


There is forum shopping where there exist: (a) identity of parties, or at least such parties as represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful would amount to res judicata (Young v. Spouses Sy, 503 SCRA 151, 166; See also Manila International Airport Authority v. Olongapo Maintenance Services, Inc., 543 SCRA 269, 301).

(d) Forum shopping “occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict.” In this jurisdiction, it has taken the form of filing multiple petitions or complaints involving the same issues before two or more tribunals or agencies in the hope that one or the other court would make a favorable disposition. There is also forum shopping when, because of an adverse decision in one forum, a party seeks a favorable opinion (other than by appeal or certio-rari) in another. The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. Thus, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue (Heirs of Cesar Marasigan v. Marasigan, 548 SCRA 409, 435).


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(e) It is an act of a party against whom an adverse judgment has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition (Spouses Carpio v. Rural Bank of Sto. Tomas Batangas, 489 SCRA 492, 496-497).

Three ways of committing forum shopping The Supreme Court enumerated the ways by which forum

shopping may be committed, thus: (1) filing multiple cases based on the same cause of action

and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia)',

(2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and

(3) filing multiple cases based on the same cause of action, but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata) (Chua v. MetroBank, 596 SCRA 524, 535-536).

Rationale against forum shopping 1. The rationale against forum shopping is that a party

should not be allowed to pursue simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. Thus, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party,


and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue (Huibonhoa v. Concepcion, supra).

2. Forum shopping is an act of malpractice, as the litigants trifle with the courts and abuse their processes. It is improper conduct and degrades the administration of justice. If the act of the party or its counsel clearly constitutes willful and deliberate forum shopping, the same shall constitute direct contempt, and a cause for administrative sanctions, as well as a ground for the summary dismissal of the case with prejudice (Montes v. Court of Appeals, G.R. No. 143797, May 4,2006; See also Citibank v. Sabeniano, G.R. No. 156132, October 12, 2006).

How to determine existence of forum shopping 1. To determine whether a party violated the rule against

forum shopping, the most important question to ask is whether the elements of litis pendentia are present or whether a final judgment in one case will result to res judicata in another. Otherwise stated, to determine forum shopping, the test is to see whether in the two or more cases pending, there is: (a) identity of parties, (b) identity of rights or causes of action, and (c) identity of reliefs sought (Huibonhoa v. Concepcion, supra).

2. Forum shopping exists when the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another. Litis pendentia requires the concurrence of the following requisites: (1) identity of parties, or at least such parties as those representing the same interests in both actions; (2) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and (3) identity with respect to the two preceding particulars in the two cases, such that any judgment that may be rendered in the pending case, regardless of which party is successful would amount to res adjudicata in the other case (Lim v. Vianzon, G.R. No. 137187, August 3, 2006; CABEU- NFL v. CAB, 635 SCRA 339, 352, November 17, 2010).


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3. Where the reliefs sought in the two actions are different, there is no forum shopping even if the parties in the actions are the same. Where one action is for a permanent injunction and the other is a petition for certiorari, there is no identity of reliefs (Huibonhoa v. Concepcion, supra, 571).

4. Where the reliefs sought in two courts involving the same parties is to restrain a government official from implementing the same order, there is forum shopping because there is identity of reliefs (Montes v. Court of Appeals, 489 SCRA 432, 440).

5. The filing of six appeals, complaints or petitions to frustrate the execution of a judgment is a clear case of forum shopping (Millare v. Montero, 246 SCRA 1).

6. The concept of forum shopping applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling (Multinational v. Court of Appeals, 203 SCRA 104).

7. At its most basic, however, prohibited forum shopping refers to “actions involving the same issues” (Wacnang v. Comelec, supra).

8. To file an ordinary appeal and a petition for certiorari with the Court of Appeals is engaged in forum shopping. When the petitioner commenced the appeal, only four months had elapsed prior to her filing with the CA the Petition for Certiorari under Rule 65 and which eventually came up to the Court by way of the instant Petition (re: Non-Suit). The elements of litis pendentia are present between the two suits. Both suits are founded on exactly the same facts and refer to the same subject matter — the RTC Orders which dismissed civil case for failure to prosecute. In both cases, the petitioner is seeking the reversal of the RTC orders. The parties, the rights asserted, the issues professed, and the reliefs prayed for, are all the same. It is evident that the judgment of one forum may amount to res judicata in the other (Young v. Spouses Sy, 503 SCRA 151,166).


9. There is forum shopping when two or more actions or proceedings, founded on the same cause, are instituted by a party on the supposition that one or the other court would make a favorable disposition. Where a party’s petition for certiorari and subsequent appeal seek to achieve one and the same purpose, there is forum shopping which is a sufficient ground for the dismissal of the certiorari petition (Espiritu v. Tankiansee, G.R. No. 164153, June 13, 2011).

10. There could be forum shopping when multiple cases are filed with different prayers but are actually based on the same cause of action. For instance, the first case filed is for the annulment of the real estate mortgage for having been allegedly falsified and being spurious. The second case between the same parties is one for injunction for the annulment of the extrajudicial sale and injunction against the consolidation of title. If the second action is predicated on the alleged nullity of the real estate mortgage, both actions are still based on the same cause of action which is the nullity of the mortgage. The issues raised in both cases are inevitably substantially the same even if the prayers are not the same. There is still forum shopping. As the Court put it: “ x x x While the main relief sought in the Annulment Case (nullification of the REM) is ostensibly different from the main relief sought in the Injunction Case (nullification of the extrajudicial foreclosure and injunction against consolidation of title), the cause of action which serves as the basis for the said reliefs remains the same — the alleged nullity of the REM” (Asia United Bank v. Goodland Company, Inc., G.R. No. 191388, March 9, 2011).

11. In a case, the plaintiff filed an unlawful detainer case against the defendant based on violations of the terms of the lease contract which at that time had not yet expired. During the pendency of the case and after the lease contract had expired, a second case for unlawful detainer was filed by the same plaintiff against the same defendant. The second complaint disclosed the existence of the first case. The second suit was based on the expiration of the lease contract. The Court found no forum shopping under the facts. To determine whether a party violated the rule against forum shopping,


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the test applied is whether the elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in another (Umale v. Canoga Park Development Corporation, G.R. No. 167246, July 20, 2011).

Who executes the certification against forum shopping (Bar 2000); exception

1. It is the plaintiff or principal party who executes the certification under oath (Sec. 5, Rule 7, Rules of Court). Jurisprudence also affirms the rule.

The certification must be executed by the party, not the attorney (Damasco v. NLRC, 346 SCRA 714, 720; Digital Microwave Corporation v. Court of Appeals, 328 SCRA 286; Juaban v. Espina, 548 SCRA 588).

Reason: It is the petitioner and not the counsel who is in the best position to know whether he or it actually filed or caused the filing of a petition. A certification signed by counsel is a defective certification and is a valid cause for dismissal (Far Eastern Shipping Company v. Court of Appeals, 297 SCRA 30, 53). This is the general rule and the prevailing rule.

2. In one case, Go v. Rico, 488 SCRA 137, 145- 146, petitioners admitted that neither of them signed the certification against forum shopping. Only their counsel did. The Court in this case emphatically stressed that a certification by counsel and not by the principal party himself is no certification at all. The reason for requiring that it must be signed by the principal party himself is that he has actual knowledge, or knows better than anyone else, whether he has initiated similar action/s in other courts, agencies or tribunals. Their lawyer’s explanation that they were out-of- town at the time their petition was filed with the Court of Appeals was considered bereft of basis. That explanation was an afterthought as it was not alleged by counsel in her certification against forum shopping.

3. While the rule is that the certification against forum shopping must be executed by the party-pleader and not by his counsel, the rule is subject to exceptions.


If, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf (Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011 citing Traveno v. Bobongon Banana Growers Multi- Purpose Cooperative, G.R. No. 164205, September 3, 2009).

Rule if there are several plaintiffs or petitioners; exception 1. The certification against forum shopping must be signed

by all the plaintiffs or petitioners in a case; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances, however, as when the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them xxx substantially conforms with the Rule (Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011).

2. “ x x x While the general rule is that the certificate of non-forum shopping must be signed by all the plaintiffs in a case and the signature of only one of them is insufficient, the Court has stressed that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. Strict compliance with the provision regarding the certificate of non-forum shopping underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. It does not, however, prohibit substantial compliance therewith under justifiable circumstances, considering especially that although it is obligatory, it is not jurisdictional.

In a number of cases, the Court has consistently held that when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the rules” (Prince Transport, Inc., v. Garcia, 639 SCRA 312, 326, January 12, 2011).


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3. The above rule will not be applied if dishonesty attended the signing of the certification.

In one interesting case, the Court of Appeals (CA) outrightly dismissed a petition for annulment of judgment. It found that three of the petitioners, did not sign the certification of non-forum shopping; and that the payment of the docket fee was short of P480.00. The petitioners filed their Motion for Reconsideration which the CA granted and ordered the reinstatement of the petition.

The respondents filed a motion for reconsideration of the order reinstating the petition on the ground that it was made to appear in the petition for annulment of judgment that one of the petitioners had signed the certification against forum shopping despite his having passed away seven (7) years before. Also, it was alleged that the signature of one of the purported petitioners was not his as compared to his signature in the letter which respondents attached to the motion for reconsideration and that the latter could not have signed the petition because he was bedridden due to a stroke as of the date the signature was supposed to have been affixed. Under the averred facts supporting the Motion for Reconsideration and the fact that no comment was filed by the petitioners, the Court of Appeals reconsidered and dismissed the petition. The Court of Appeals in its resolution added that Sec. 5, Rule 7 of the Rules of Court provides that the principal party shall sign the certification against forum shopping, as the attestation requires personal knowledge by the party who executed the same, otherwise, it would cause the dismissal of the petition. A motion for reconsideration was filed by the petitioners harking on an alleged substantial compliance with the rule on certification against forum shopping because majority of the principal parties were able to sign the verification and certification against forum shopping. The motion was denied for the failure to explain why a dead person was able to sign the certification. The issue according to the Court of Appeals was not substantial compliance but dishonesty.

The Court agreed with the Court of Appeals and declared:


“[Th]e [Court] found no reversible error committed by the CA.

As correctly observed by the CA, while [th]e [Court] ha[s] in a number of cases applied the substantial compliance rule on the filing of the certification of non-forum shopping, specially when majority of the principal parties had signed the same and who shared a common interest, [th]e [Court] agree[s] with the CA that such leniency finds no applicability in this case because of petitioners’ dishonesty committed against the appellate court. A perusal of the verification and certification against forum shopping attached to the petition for annulment of judgment filed in the CA would show that there was a signature above the typewritten name of Quintin. In fact, written below the signature of Quintin was Community Tax Certificate (CTC) No. 06570132, issued on January 8, 2003 in Man- daue City. Thus, it would appear that Quintin, who was already dead at the time the petition was filed, had signed the verification and certification of non-forum shopping and he was even in possession of a CTC. Petitioners’ actuation showed their lack of forthrightness to the CA which the latter correctly found to be a dishonest act committed against it” (Heirs of Francisco Retuya v. Court of Appeals, G.R. No. 163039, April 6, 2011).

Liberal interpretation of the rules on the signing of the certi-fication against forum shopping

1. It has also been held that the rules on forum shopping, which were precisely designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective which is the goal of all rules of procedure — that is, to achieve substantial justice as expeditiously as possible (Great Southern Maritime Services Corp. v. Acuna, 452 SCRA 422, 435). Hence, the rule is subject to the power of the Supreme Court to suspend procedural rules and to lay down exceptions to the same.

Examples: While a petition for certiorari is flawed where the certificate of non-forum shopping was signed only by counsel and not by the party, this procedural lapse was


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overlooked by the Court in the interest of justice (Sy Chin v. Court of Appeals, 345 SCRA 673, 684).

In another case, the fact that the parties were abroad at a time when the petition was filed, was considered a reasonable cause to exempt the parties from compliance with the requirement that they personally execute the certification against forum shopping (Hamilton v. Levy, 344 SCRA 821, 828).

In De Guia v. De Guia, 356 SCRA 287, the Supreme Court went to the extent of invoking its power to suspend the Rules by disregarding the absence of the certification against forum shopping in the interest of substantial justice.

The Court in De Guia declared: “ x x x With regard to the absence of a certification of non-forum shopping, substantial justice behooves [the Court] to agree with the disquisition of the appellate court. [Th]e [Court] do[es] not condone the shortcomings of respondents’ counsel, but [it] simply cannot ignore the merits of their claim. Indeed, it has been held that “[i]t is within the inherent power of the Court to suspend its own rules in a particular case in order to do justice.”

2. In Dar v. Alonzo-Legasto, 339 SCRA 306, 309-310, where the petitioners were sued jointly as “Mr. and Mrs.” over a property in which they were alleged to have common interest, the signing of the certification against forum shopping by one of the petitioners was held to be a substantial compliance of the rule.

In a subsequent ruling in the case of Docena v. Lapesura, 355 SCRA 658, 668-669, where only the husband signed the certificate against forum shopping in a petition involving the conjugal residence of the spouses, the Supreme Court considered the certification as having substantially complied with the requirements of the Rules of Court.

3. In Cavile v. Heirs of Clarita Cavile, 400 SCRA 255, 262, a similar ruling was made where the Court held that there was substantial compliance with the Rules where only one petitioner signed the certification against forum shopping


in behalf of all the other petitioners being all relatives and coowners of the properties in dispute, and who shared a common interest in them, had a common defense in the complaint for partition, filed the petition collectively, and raised only one argument to defend their rights over the properties in question.

4. A liberal interpretation of the rule has likewise been adopted in the case of Bases Conversion Development Authority v. Uy, 506 SCRA 524. While in this case, only one petitioner signed the verification and certification of non-forum shopping, it was held that such fact is not fatal to the petition, the Court ruled that the signature of a principal party in the certification of non-forum shopping satisfies the requirement of the Rules of Court if he is a principal party because accordingly, under the Rules, it is clear that the certification of non-forum shopping may be signed by a principal party (Citing Calo v. Villanueva, 480 SCRA 561).

5. In HLC Construction and Development Corporation v. Emily Homes Subdivision Homeowners Association, 411 SCRA 504, 509, the signature of only one petitioner was held to have substantially complied with the Rules because all the petitioners shared a common interest and invoked a common cause of action or defense.

6. In San Miguel Corporation v. Aballa, 461 SCRA 392, 411, only three out of the ninety seven petitioners signed the certification of non-forum shopping. The Court ruled that the execution of the certification by only three of the petitioners constitute substantial compliance with the Rules given the common cause of action against San Miguel Corporation (See also Espina v. Court of Appeals, 519 SCRA 327; Pacquing v. Coca-Cola Bottlers, Inc. 543 SCRA 344).

7. In an appeal by certiorari to the Supreme Court for instance, the lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. Sec. 5, Rule 45 of the 1997 Rules of Civil Procedure provides that the failure of the petitioner to submit the required documents that should accompany the petition,


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including the certification against forum shopping required in Sec. 4(e) of Rule 45, shall be sufficient ground for the dismissal thereof.

In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification. In all these cases, there were special circumstances or compelling reasons that justified the relaxation of the rule requiring verification and certification on non-forum shopping.

The same liberal interpretation of the rule applies to cer-tifications against forum shopping signed by a person on behalf of a corporation which are unaccompanied by proof that said signatory is authorized to file a petition on behalf of the corporation. A liberal interpretation is given to the rule more so where petitioner did submit a certification against forum shopping, but he failed only to show proof that the signatory was authorized to do so. In several rulings (Pascual & Santos, Inc. v. The Member of the Tramo Wakas Neighborhood Association, Inc., 442 SCRA 439, 447; Shipside Incorporated v. Court of Appeals, 404, Phil. 981, 352 SCRA 334; China Banking Corporation v. Mondragon International Philippines, Inc., 475 SCRA 332, 337-338), the Court permitted the subsequent submission of proof of authority to sign the certification against forum shopping (Suggested additional reading: Ateneo de Naga University v. Manalo, 458 SCRA 325).

When the rule of liberal construction applies The attachment of a certificate of non-forum shopping is a

basic requirement, which the Court considers necessary and mandatory for procedural orderliness. While the Supreme Court may have excused strict compliance in the past, it did so only on sufficient and justifiable grounds that compelled a liberal approach. The rule for the submission of a certificate of non-forum shopping, proper in form and substance, remains to be a strict and mandatory rule; any liberal application has to be justified by ample and sufficient reasons that maintain the integrity of. and do not detract from, the mandatory character of the rule (Bank of the Philippine Islands v. Court of Appeals, G.R. No. 168313, October 6, 2010; Underscoring supplied).


Signing the certification when the plaintiff is a juridical entity A juridical entity, unlike a natural person, can only perform

physical acts through properly delegated individuals. The certification against forum shopping where the plaintiff or a principal party is a juridical entity like a corporation, may be executed by properly authorized persons. This person may be the lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification against forum shopping, the certification may be signed by the authorized lawyer (National Steel Corporation v. Court of Appeals, 388 SCRA 85, 91-92).

Pleadings requiring a certification against forum shopping 1. The certification against forum shopping applies to the

complaint and other initiatory pleadings asserting a claim for relief (Sec. 5, Rule 7, Rules of Court). These initiatory pleadings include not only the original complaint but also a permissive counterclaim, cross-claim, third (fourth, etc.) -party complaint, complaint-in-intervention, petition or any application in which a party asserts his claim for relief.

2. “ x x x the proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil Procedure, i.e., that the violation of the anti-forum shopping rule ‘shall not be curable by mere amendment . . . but shall be cause for the dismissal of the case without prejudice,’ being predicated on the applicability of the need for a certification against forum shopping, obviously does not include a claim which cannot be independently set up” (Santo Tomas University v. Surla, 294 SCRA 382, 392-393).

The rule does not require a certification against forum shopping for a compulsory counterclaim because it cannot be the subject of a separate and independent adjudication as when the counterclaim is for damages, moral, exemplary or attorney’s fees, by reason of the alleged malicious and unfounded suit filed against the defendant. It is therefore, not an initiatory pleading (Santo Tomas University v. Surla, supra, 393).


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3. It bears stressing that the Rule distinctly provides that the required certification against forum shopping is intended to cover an initiatory pleading, meaning an incipient application of a party asserting a claim for relief. The answer with a counterclaim is a responsive pleading, filed merely to counter petitioners’ complaint that initiates the civil action and is a claim for relief that is derived only from, or is necessarily connected with, the main action or complaint. It is not an initiatory pleading (Spouses Carpio v. Rural Bank of Sto. Tomas Batangas, 489 SCRA 492, 497).

Effects of non-compliance with the rule on certification against forum shopping (Bar 1996)

1. The failure to comply with the required certification is “not curable by a mere amendment” and shall be a cause for the dismissal of the action (Sec. 5, Rule 7, Rules of Court). The dismissal for failure to comply with the certification requirement is not to be done by the court motu proprio. The rule requires that the dismissal be upon motion and after hearing (Sec. 5, Rule 7, Rules of Court).

2. If the case is dismissed for failure to comply with the certification requirement, the dismissal is, as a rule, “without prejudice,” unless the order of dismissal otherwise provides (Sec. 5, Rule 7, Rules of Court). Hence, where the dismissal is silent as to the character of the dismissal, the dismissal is presumed to be without prejudice to the refiling of the complaint.

3. The failure to submit a certification against forum shopping is a ground for dismissal, separate and distinct from forum shopping as a ground for dismissal. A complaint may be dismissed for forum shopping even if there is a certification attached and conversely, a complaint may be dismissed for lack of the required certification even if the party has not committed forum shopping. Compliance with the certification against forum shopping is separate from, and independent of, the avoidance of forum shopping itself (Juaban v. Espina, 548 SCRA 588, 605-606).


Exceptions to the effects of non-compliance Non-compliance with the rule requiring a certification against

forum shopping or a defect therein x x x, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of “substantial compliance” or there is the presence of “special circumstances or compelling reasons” (Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011).

No appeal from an order of dismissal If a complaint is dismissed for failure to comply with the

required certification against forum shopping, may the plaintiff appeal from the order of dismissal where the dismissal is one without prejudice? Answer: He cannot appeal from the order. This is because an order dismissing an action without prejudice is not appealable. The remedy provided for under Sec. 1 of Rule 41 is to avail of the appropriate special civil action under Rule 65 (Sec. l[g], Rule 41, as amended, Rules of Court).

Effect of willful and deliberate forum shopping 1. If the acts of the party or his counsel clearly constitute

willful and deliberate forum shopping, the same shall be a ground for summary dismissal. Here, no motion to dismiss and hearing are required. The dismissal in this case is with prejudice and shall constitute direct contempt, as well as cause for administrative sanctions (Sec. 5, Rule 7, Rules of Court).

2. Jurisprudence holds that if the forum shopping is not considered willful and deliberate, the subsequent case shall be dismissed without prejudice, on the ground of either litis pendentia or res judicata. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice (Phil. Pharmawealth, Inc. v. Pfizer, Inc., 635 SCRA 140,161, November 17, 2010).

Effect of submission of a false certification It may happen that the pleading has been filed with the

required certification against forum shopping but the


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allegations therein or the matters certified to therein are false. Under the Rules, the submission of a false certification shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions (Sec. 5, Rule 7, Rules of Court).

Effect of non-compliance with the undertakings Failure to comply with the undertakings in the certification

against forum shopping has the same effect as the submission of a false certification (Sec. 5, Rule 7, Rules of Court; Oliveros v. Sison, 548 SCRA 265, 271). Hence, such failure shall constitute indirect contempt of court without prejudice to the corresponding sanctions (Sec. 5, Rule 7, Rules of Court) The criminal sanction would apply to the submission of a false certification.

Summary of guidelines respecting non-compliance with the requirements of, or submission of defective, verification and certification against forum shopping

X X X

“ x x x For the guidance of the bench and bar, the Court restates in capsule form the jurisprudential pro-nouncements already reflected above respecting non- compliance with the requirements on, or submission of defective, verification and certification against forum shopping:

1) A distinction must be made between non-compliance with the requirement on or submission of defec-tive verification, and non-compliance with the require-ment on or submission of defective certification against forum shopping.

2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The Court may order its submission or correction or act on the pleading if the attending circum-stances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby.


3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.

4) As to certification against forum shopping, non-compliance therewith or a defect therein, unlike in verification, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of “substantial compliance” or presence of “special circumstances or compelling rea-sons.”

5) The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; oth-erwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstanc-es, however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the cer-tification against forum shopping substantially complies with the Rule.

6) Finally, the certification against forum shop-ping must be executed by the party-pleader, not by his counsel. If, however, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of re-cord to sign on his behalf’ (Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011 citing Altres v. Empleo, 573 SCRA 583; See also Mactan-Cebu International Airport Authority v. Heirs of Minoza, 641 SCRA 520, 528).

C. Allegations In Pleadings

Manner of making allegations 1. The pleading asserting the claim or the cause of action

must contain only the ultimate facts. These facts must be stated in a plain, concise, methodical and logical form. Evidentiary facts must be omitted (Sec. 1, Rule 8, Rules of Court). The rule suggests that since pleadings should contain


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only the ultimate facts, the same should not contain mere conclusions, whether of fact or law, because conclusions are not facts.

2. The ultimate facts refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate (Cero- ferr Realty Corporation v. Court of Appeals, 376 SCRA 144, 148). The ultimate facts are the important and substantial facts which form the basis of the primary right of the plaintiff and which make up the wrongful act or omission of the defendant. The ultimate facts do not refer to the details of probative matter or to the particulars of evidence by which the material elements are to be established. They are the principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests (Tantuico, Jr. v. Republic, 204 SCRA 428, 437).

3. The complaint, in stating the cause of action, should not contain sham, false, redundant, immaterial, impertinent, or scandalous matters. These matters may be stricken out upon motion made by a party before responding to a pleading or within twenty (20) days after service of the pleading upon him where no responsive pleading is permitted by the Rules, or upon the court’s own initiative at any time (Sec. 12, Rule 8, Rules of Court).

Conditions precedent 1. Common usage refers to conditions precedent as matters

which must be complied with before a cause of action arises. When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading.

2. The following are examples of conditions precedent: (a) A tender of payment is required before making a

consignation (Art. 1256, Civil Code of the Philippines). (b) Exhaustion of administrative remedies is required

in certain cases before resorting to judicial action (Lopez v. City of Manila, 303 SCRA 448; Dy v. Court of Appeals, 304 SCRA 331).


(c) Prior resort to barangay conciliation proceedings is necessary in certain cases (Book III, Title I, Chapter 7, Local Government Code of 1991).

(d) Earnest efforts toward a compromise must be undertaken when the suit is between members of the same family and if no efforts were in fact made, the case must be dismissed (Art. 151, Family Code of the Philippines). Such efforts are not required in special proceedings (Bar 2011).

(e) Arbitration may be a condition precedent when the contract between the parties provides for arbitration first before recourse to judicial remedies.

Effect of failure to compy with a condition precedent The failure to comply with a condition precedent is an

independent ground for a motion to dismiss: that a condition precedent for filing the claim has not been complied with (Sec. l[j], Rule 16, Rules of Court).

Pleading a judgment 1. In pleading a judgment or decision of a domestic or

foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision. There is no need to allege matters showing the jurisdiction to render the judgment or decision (Sec. 6, Rule 8, Rules of Court).

2. Under Sec. 3(n) of Rule 131, there is a presumption, though disputable, that “a court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction.”

Pleading an official document or act In pleading an official document, it is sufficient to aver that

the document was issued in compliance with law. With respect to an official act, it is likewise sufficient to allege that


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the act was done also in compliance with law (Sec. 9, Rule 8, Rules of Court).

Pleading capacity to sue or be sued Facts showing the capacity of a party to sue or be sued must be

averred. If a party is suing or sued in a representative capacity, his authority must also be averred. If a party is an organized association of persons, its legal existence must likewise be averred (Sec. 4, Rule 8, Rules of Court).

Pleading fraud, mistake or condition of the mind 1. When making averments of fraud or mistake, the

circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8, Rules of Court).

The provision clearly suggests that it is not enough therefore, for the complaint to allege that he was defrauded by the defendant. Under this provision, the complaint must state with particularity the fraudulent acts of the adverse party. These particulars which would necessarily include the specific acts of fraud committed against the plaintiff would help apprise the judge of the kind of fraud involved in the complaint. Note that under the Civil Code of the Philippines, there are various types of frauds, each of which has its own legal effects (See Arts. 1170, 1330, 1390, 1344, 1359, 1381 of the Civil Code of the Philippines). The same is true with acts constituting mistake (See Arts. 1331-1334).

2. Malice, intent, knowledge or other conditions of the mind of a person may be averred generally (Sec. 5, Rule 8, Rules of Court). Unlike in fraud or mistake, they need not be stated with particularity. The rule is borne out of human experience. It is difficult to state the particulars constituting these matters. Hence, a general averment is sufficient.

Pleading alternative causes of actions or defenses 1. Under Sec. 2 of Rule 8, a party may set forth two or more

statements of a claim or defense, alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses.


2. The subject provision recognizes that the liability of the defendant may possibly be based on either one of two or more possible causes of action. The plaintiff may, for example, believe that the liability of the carrier may be based either on a breach of contract of carriage or on a quasi-delict, but he may not be certain which of the causes of action would squarely fit the set of facts alleged in the complaint, although he is certain that he is entitled to relief. He may therefore, state his causes of action in the alternative. This provision in effect, also relieves a party from being compelled to choose only one cause of action.

The landmark case of La Mallorca v. Court of Appeals (17 SCRA 739, 744-745) illustrates this rule particularly well. Here, the plaintiffs were allowed to sue based upon a quasidelict theory and in the alternative, upon a breach of contract, where the death of their child occurred when they were no longer on board the bus of the common carrier but at the time the father was in the process of retrieving the family’s personal belongings from the bus. Although ultimately the case was ruled to be a breach of contract of carriage, the procedural device of pleading alternative causes of action was strongly affirmed in this case.

3. The same provision has affinity to the rule (Sec. 13, Rule 3, Rules of Court) which authorizes suing two or more defendants in the alternative. For instance, the plaintiff insurance company, which paid for the loss of the goods insured, may sue in the alternative the shipping company that transported the goods and the warehouse company that stored the goods if the plaintiff is uncertain which between the defendants is responsible for the loss.

In Hanover Insurance Company v. Port Service and Manila Railroad Company, 19 SCRA 69, 73, the Court allowed the alternative suit against the arrastre operator and the owners and agents of the carrying vessels filed by the insurance company which paid the consignee for the lost merchandise. The joinder of the two causes of action against the alternative defendants, according to the Court, avoids


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unnecessary multiplicity of suits and, without sacrificing any substantial rights of the parties, removes the undue disadvantage in which plaintiff would be placed by having to prove its case in different courts by means of evidence that is within the exclusive knowledge of said defendants.

4. Pleading alternative causes of action normally leads to inconsistent claims. For instance, the elements of a cause of action based on a contractual theory are inconsistent with those of a cause of action based on a quasi-delict. As previously discussed, a suit based on a breach of contract of carriage for example, does not require an allegation and proof of negligence because it is not an element of a breach of contract suit (Calalas v. Court of Appeals, 332 SCRA 356; FGU Insurance Corporation v. G.P. Sarmiento Trucking Corporation, 386 SCRA 312). On the other hand, negligence, as a rule, is an essential element of a suit based on a quasidelict (Art. 2176, Civil Code of the Philippines).

Under Sec. 2 of Rule 8, this situation is permissible as long as the allegations pleaded within a particular cause of action are consistent with the cause of action relied upon as an alternative. Thus, if the alternative cause of action is a breach of contract, the allegations therein must support the facts constituting the breach of the contract.

5. Under the same provision (Sec. 2, Rule 8), the pleading which contains alternative causes of action is not made insufficient by the insufficiency of one or more of the alternative statements as long as one of them if made independently would be sufficient. This means that the rule does not require that all of the alternative causes of action be sufficient for the plaintiff to be entitled to relief. It is enough that one of them if made independently would be sufficient to support a cause of action.

The relevant rule provides: “When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements” (Sec. 2, Rule 8, Rules of Court).


6. Sec. 2 of Rule 8 authorizes not only alternative causes of action. The rule likewise permits alternative defenses. Under said rule, a party may set forth two or more defenses alternatively or hypothetically. Thus, a defendant may assert the defense of payment of the debt or the prescription of said debt.

The rule allowing alternative defenses is consistent with even the omnibus motion rule which requires that all motions attacking a pleading shall include all objections then available, and all objections not so included shall be deemed waived (Sec. 8, Rule 15, Rules of Court).

Pleading actionable documents (Bar 1991; 2004; 2005) 1. A substantial number of cases reaching the courts show

that the plaintiff’s cause of action or the defendant’s defense is based upon a written instrument or a document.

The document used in such cases is what is commonly termed an “actionable document” which in current usage is referred to as the document relied upon by either the plaintiff and the defendant as when the plaintiff sues on a written contract of lease (Araneta, Inc. v. Lyric Factor Exchange, Inc., 58 Phil. 736, 741).

For example, in an action for collection of a sum of money, the actionable document would be the promissory note executed by the defendant in favor of the plaintiff. In an action for foreclosure of a mortgage, the actionable document would be the deed of mortgage. On the other hand, if the defendant alleges that the debt has been paid, the receipt of payment issued by the plaintiff would be the actionable document.

2. Whenever an actionable document is the basis of a pleading, the rule specifically directs the pleader to (a) set forth in the pleading the substance of the instrument or the document, and to attach the original or the copy of the document to the pleading as an exhibit and which shall form part of the pleading; or (b) with like effect, to set forth in the pleading said copy of the instrument or document (Sec. 7, Rule 8,


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Rules of Court). This manner of pleading a document applies only to an actionable document, i.e., one which is the basis of an action or a defense. Hence, if the document does not have the character of an actionable document, it need not be pleaded strictly in the manner prescribed by Sec. 7 of Rule 8.

How to contest an actionable document; oath required (Bar 2010) 1. When the action is founded upon a document pleaded in

the manner required by Sec. 7 of Rule 8, the party who has no intent of admitting the genuineness and due execution of the document, must contest the same by (a) specifically denying the genuineness and due execution of the document under oath; and (b) setting forth what he claims to be the facts (Sec. 8, Rule 8, Rules of Court).

2. A mere specific denial of the actionable document is insufficient. The denial must be coupled with an oath. In current usage, this means that the denial must be verified. The absence of an oath will result in the implied admission of the due execution and genuineness of the document (Sec. 8, Rule 8, Rules of Court). For instance, in a complaint for a sum of money based on a promissory note duly pleaded in the complaint by the plaintiff in accordance with Sec. 7 of Rule 8, the defendant will be deemed to have admitted the genuineness and due execution of the promissory note even if he makes a specific denial of such matters in his answer if the denial is not under oath. Hence, during the trial, the defendant will not be allowed to prove the forgery of the promissory note over the objection of the plaintiff, its genuineness and due execution having been previously admitted due to his failure to make a denial under oath.

When an oath is not required (Bar 1987) The requirement of a specific denial under oath will not apply

in either of the following cases: (a) When the adverse party does not appear to be a

party to the instrument, or


(b) When compliance with an order for an inspection of the original instrument is refused (Sec. 8, Rule 8, Rules of Court). Thus, if a son is sued as a substitute party under a document

signed by his deceased father, a specific denial is sufficient without the same being under oath because the son is not a party to the document. Also, if the court grants a motion filed by a party for the inspection of the original document in the possession of the adverse party, and the latter refuses to comply with the order, the former may deny the document without an oath.

Meaning of admission By the admission of the genuineness and due execution of an

instrument, is meant that the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleadings of the party relying upon it; that the documents was delivered; and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him (Hibberd v. Rhode and Mcmillian, 32 Phil. 476, 478).

Defenses cut-off by the admission of genuineness and due execution

When a party is deemed to have admitted the genuineness and due execution of an actionable document, defenses that are implied from said admission are necessarily waived like the defenses of forgery of the document, lack of authority to execute the document, that the party charged signed the document in some other capacity than that alleged in the pleading, or that the document was never delivered (Hibberd v. Rhode and McMillian, 32 Phil. 476, 478-479). Also cut-off by the admission is the defense that the document was not in words and figures as set out in the pleadings (Imperial Textile Mills v. Court of Appeals, 183 SCRA 584).


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Defenses not cut-off by the admission of genuineness and due execution

The following defenses, among others, on the other hand, may be interposed despite the implied admission of the genuineness and due execution of the document: (a) payment or non-payment; (b) want of consideration; (c) illegality of consideration; (d) usury; and (e) fraud. These defenses are not inconsistent with the admission of the genuineness and due execution of the instrument and are not therefore, barred (See also Hibberd v. Rhodes and McMillian, supra, 479-480). It is submitted that prescription, release, waiver, statute of frauds, estoppel, former recovery or discharge in bankruptcy are not likewise barred, these defenses having no direct relationship to the concepts of‘genuineness and due execution.’

D. Filing And Service Of Pleadings, Judgments And Other Papers In Civil Cases

Meaning of ‘filing’ Filing is the act of presenting the pleading or other papers to

the clerk of court (Sec. 2, Rule 13, Rules of Court).

Meaning of ‘service’ Service is the act of providing a party with a copy of the pleading or

paper concerned (Sec. 2, Rule 13, Rules of Court).

Upon whom service shall be made 1. If a party has not appeared by counsel, then service must

be made upon him. 2. If a party has appeared by counsel, then service upon said

party shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court (Sec. 2, Rule 13, Rules of Court). The rule is that when a party is represented by counsel in an action in court, notices of all kinds, including motions, pleadings, and orders must be served on said counsel and notice to him is notice to the client (People v. Gabriel, 510 SCRA 197, 202).


3. It has been held that notice or service made upon a party who is represented by counsel is a nullity. As a rule, notice to the client and not to his counsel of record is not notice in law unless for instance when the court or tribunal orders service upon the party or when the technical defect in the manner of notice is waived (Heirs of Benjamin Mendoza v. Court of Appeals, 565 SCRA 506, 512-513).

4. Service upon the parties’ counsels of record is tan-tamount to service upon the parties themselves, but service upon the parties themselves is not considered service upon their lawyers. The reason is simple — the parties, generally, have no formal education or knowledge of the rules of procedure, specifically, the mechanics of an appeal or availment of legal remedies; thus, they may also be unaware of the rights and duties of a litigant relative to the receipt of a decision. More importantly, it is best for the courts to deal only with one person in the interest of orderly procedure — either the lawyer retained by the party or the party himself if he does not intend to hire a lawyer (De los Santos v. Elizalde, 514 SCRA 14, 27).

Service upon counsel representing several parties Where one counsel appears for several parties, service shall be

made upon said counsel but he shall be entitled only to one copy of any paper served upon him by the opposite side (Sec. 2, Rule 13, Rules of Court).

Manner of filing 1. There are two modes of filing, to wit:

(a) by presenting the original copy of the pleading, notice, appearance, motion, order or judgment personally to the clerk of court; or

(b) by registered mail. 2. In the first mode, the clerk of court shall indicate or

endorse on the pleading or paper filed, the date and hour of filing. 3. In the second mode, the date of mailing as shown by the

post office stamp on the envelope or registry receipt


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shall be considered as the date of filing, payment or deposit in court. The rule also requires that the envelope be attached to the record of the case (Sec. 3, Rule 13, Rules of Court).

3. Under Sec. 3, Rule 13 of the Rules of Court, where the filing of pleadings, appearances, motions, notices, orders, judgments, and all other papers with the court/tribunal is made by registered mail, the date of mailing, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of filing.

Thus, the date of filing is determinable from two sources: from the post office stamp on the envelope or from the registry receipt, either of which may suffice to prove the timeliness of the filing of the pleadings. If the date stamped on one is earlier than the other, the former may be accepted as the date of filing. This presupposes, however, that the envelope or registry receipt and the dates appearing thereon are duly authenticated before the tribunal where they are presented (GSIS v. NLRC, 635 SCRA 251, 257, November 17, 2010).

How to prove filing 1. The filing of a pleading or paper shall be proved by its

existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same (Sec. 12, Rule 13, Rules of Court).

2. If the pleading or paper is filed by registered mail, proof of filing is by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered (Sec. 12, Rule 13, Rules of Court).

Papers required to be filed and served The following papers are required to be filed in court and

served upon the parties affected: (a) judgments, (b) resolutions,


(c) orders, (d) pleadings subsequent to the complaint, (e) written motions, (f) notices, (g) appearances, (h) demands, (i) offers of judgment, or (j) similar papers (Sec. 4, Rule 13, Rules of Court).

Modes of service Under Sec. 5 of Rule 13, there are two modes of service of

pleadings, motions, notices, orders, judgments and other papers: (a) personally (Sec. 6, Rule 13) or by (b) mail (Sec. 7, Rule 13). However, if personal service and service by mail cannot be made, service shall be done by ‘substituted service’ (Sec. 8, Rule 13, Rules of Court).

Personal service; priority in modes of service and filing 1. The service and filing of pleadings and other papers shall

be done personally, whenever practicable. This is the preferred mode of service (Sec. 11, Rule 13, Rules of Court; Uy v. Medina, 342 SCRA 393, 401). If another mode of service is used other than personal service, the service must be accompanied by a written explanation why the service or filing was not done personally. Exempt from this explanation are the service of papers emanating from the court. A violation of this explanation requirement may be cause for the paper to be considered as not having been filed (Sec. 11, Rule 13, Rules of Court).

2. In Marinduque Mining and Industrial Corporation v. Court of Appeals, 567 SCRA 483, 491-492, petitioners maintain that the trial court should have considered the notice of appeal as not filed at all because respondent (NAPOCOR) failed to comply with the rule under Sec. 11 of Rule 13 requiring that the service and filing of pleadings and other papers shall be done personally. On the other hand, respondent argues that the rules allow resort to other modes of service and filing as long as the pleading was accompanied by a written explanation why service or filing was not done personally. Respondent maintains that it complied with the rules because the notice of appeal contained an explanation


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why it resorted to service and filing by registered mail - due to lack of manpower to effect personal service.

Resolving the issue, the Supreme Court held:

“Under Section 11, Rule 13 of the Rules, personal service of pleadings and other papers is the general rule while resort to the other modes of service and filing is the exception. When recourse is made to the other modes, a written explanation why service or filing was not done personally becomes indispensable. If no explanation is offered to justify resorting to the other modes, the discretionary power of the court to expunge the pleading comes into play.

xxx “In this case, NAPOCOR complied with the Rules.

NAPOCOR’s notice of appeal sufficiently explained why the notice of appeal was served and filed by registered mail - due to lack of manpower to effect personal service. This explanation is acceptable for it satisfactorily shows why personal service was not practicable (Citing Solar Team Entertainment, Inc. v. Ricafort, 355 Phil. 404; Public Estates Authority v. Caoibes, 371 Phil. 688)

3. Personal service is made by: (a) delivering a copy of the papers personally to the party or his counsel, or (b) or by leaving the papers in his office with his clerk or a person having charge thereof. If no person is found in the office, or his office is not known or he has no office, then by leaving a copy of the papers at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein between eight in the morning and six in the evening (Sec. 6, Rule 13, Rules of Court).

4. In one case, service of the COA resolution was made to the resident corporate auditor of the petitioner DBP. The auditor holds office in the premises of petitioner DBP and is actually an employee of the COA assigned to DBP by COA.

Respondent COA contends that the service of the COA resolution to petitioner’s resident corporate auditor is tanta


mount to a service upon the petitioner itself. Petitioner, on the other hand, argues that the resident corporate auditor is not its employee but that of the respondent.

The Supreme Court agreed with the contention of DBP that the resident corporate auditor of the DBP is neither an official nor an employee of the DBP. He does not come within the definition of “clerk or person having charge” of the office that may be validly served with a copy of the resolution of the respondent as contemplated by the Rules. In fact, the resident corporate auditor is an extension of the respondent COA and no department of the petitioner was actually served with a copy of the resolution (Development Bank of the Philippines v. Commission on Audit, 498 SCRA 537, 543).

When personal service is deemed complete Upon actual delivery, personal service is deemed complete

(Sec. 10, Rule 13, Rules of Court).

Service by mail 1. The preferred service by mail is by registered mail.

Service by ordinary mail may be done only if no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule 13, Rules of Court).

2. Service by registered mail shall be done by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, or otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered (Sec. 7, Rule 13, Rules of Court).

3. When service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence. In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts


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showing compliance with Sec. 13, Rule 13 of the 1997 Rules on Civil Procedure (Republic v. Resins, Inc., 639 SCRA 390, 401-402, January 12, 2011).

When service by mail is deemed complete 1. Service by ordinary mail is complete upon the expiration

of ten (10) days after mailing, unless the court otherwise provides. (Sec. 10, Rule 13, Rules of Court).

2. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever is earlier (Sec. 10, Rule 13, Rules of Court).

Substituted service 1. This mode is availed of only when there is failure to effect

service personally or by mail. This failure occurs when the office and residence of the party or counsel are unknown (Sec. 8, Rule 13, Rules of Court).

2. Substituted service is effected by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13, Rules of Court).

When substituted service is complete Substituted service is complete at the time of delivery of the

copy to the clerk of court (Sec. 8, Rule 13, Rules of Court).

How to prove service (Bar 2011) 1. Proof of personal service shall consist of the written

admission of the party served. It may also be proven by the official return of the server, or the affidavit of the party serving, containing full information of the date, place and manner of service (Sec. 13, Rule 13, Rules of Court).

2. If the service is by ordinary mail, proof thereof shall consist of the affidavit of the person mailing of the facts showing compliance with Sec. 7 of Rule 13 (Sec. 13, Rule 13, Rules of Court).


3. If service is by registered mail, the proof shall consist of such affidavit of the person mailing and the registry receipt issued by the mailing office. The registry return card is to be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee (Sec. 13, Rule 13, Rules of Court).

E. Kinds Of Pleadings

1. COMPLAINT

Meaning of complaint The complaint is the pleading alleging the plaintiffs cause or

causes of action (Sec. 3, Rule 6, Rules of Court). The same provision requires that the names and residences of the plaintiff and defendant be stated in the complaint.

Filing of the complaint The filing of the complaint is the act of presenting the said

complaint to the clerk of court (Sec. 2, Rule 13, Rules of Court). For the purpose of filing, the original must be presented personally to the clerk of court or by sending the same by registered mail (Sec. 3, Rule 13, Rules of Court).

Significance of filing of the complaint The filing of the original complaint in court signifies the

commencement of the civil action (Sec. 5, Rule 1, Rules of Court). By the filing of the complaint, the court also acquires jurisdiction over the person of the plaintiff. Submission to the jurisdiction of the court is implied from the very filing of the complaint where affirmative relief is prayed for by the plaintiff. It also has the effect of interrupting the prescription of actions pursuant to Art. 1155 of the Civil Code of the Philippines.

Payment of docket fees and acquisition of jurisdiction 1. It is not simply the filing of the complaint or appropriate

initiatory pleading but the payment of the prescribed


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docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action (Proton Pilipinas Corporation v. Banque National de Paris, 460 SCRA 260, 276).

2. In connection with the payment of docket fees, the court requires that all complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for both in the body of the pleading and in the prayer therein and said damages shall be considered in the assessment of the filing fees; otherwise such pleading shall not be accepted for filing or shall be expunged from the record. Any defect in the original pleading resulting in underpayment of the docket fee cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, since there is no original complaint over which the court has acquired jurisdiction (Manchester Development Corporation v. Court of Appeals, 149 SCRA 562, 569).

3. Indeed, a court acquires jurisdiction over the claim of damages upon payment of the correct docket fees (Nestle Philippines, Inc. v. FY Sons, Inc., 489 SCRA 624, 634).

4. The rule on payment of docket fee has, in some instances, been made subject to the rule on liberal interpretation. Thus, in a case, it was held that while the payment of the required docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period (Philippine Amusement and Gaming Corporation [PAGCOR] v. Lopez, 474 SCRA 76, 92; See also Sun Insurance Office, Ltd. v. Asuncion, 170 SCRA 274, 285). Also, if the amount of docket fees is insufficient considering the amount of the claim, the party filing the case will be required to pay the deficiency, but ju-risdiction is not automatically lost (Rivera v. Del Rosario, 419 SCRA 626, 635).

5. The case of The Heirs of Reinoso, Sr. v. Court of Appeals, G.R. No. 116121, July 18, 2011, clearly summarizes the rule on the payment of docket fees. Thus:


X X X

“The rule is that payment in full of the docket fees within the prescribed period is mandatory (Pedrosa v. Hill, 327 Phil. 153, 158 [1996]). In Manchester v. Court of Appeals (233 Phil. 579 [1987]), it was held that a court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. The strict application of this rule was, however, relaxed two (2) years after in the case of Sun Insurance Office, Ltd. v. Asuncion (252 Phil. 280 [1989]) wherein the Court decreed that where the initiatory pleading is not accompanied by the payment of the docket fee, the court may allow payment of the fee within a reasonable period of time, but in no case beyond the applicable prescriptive or reglementary period. This ruling was made on the premise that the plaintiff had demonstrated his willingness to abide by the rules by paying the additional docket fees required. Thus, in the more recent case of United Overseas Bank v. Ros (G.R. No. 171532, August 7,2007, 529 SCRA 334, 353), the Court explained that where the party does not deliberately intend to defraud the court in payment of docket fees, and manifests its willingness to abide by the rules by paying additional docket fees when required by the court, the liberal doctrine enunciated in Sun Insurance Office, Ltd., and not the strict regulations set in Manchester, will apply. It has been on record that the Court, in several instances, allowed the relaxation of the rule on non-payment of docket fees in order to afford the parties the opportunity to fully ventilate their cases on the merits. In the case of La Salette College v. Pilotin, (463 Phil. 785 [2003]),the Court stated:

Notwithstanding the mandatory nature of the re-quirement of payment of appellate docket fees, [th]e [Court] also recognizefs] that its strict application is qualified by the following: first, failure to pay those fees within the reglementary period allows only discretionary, not automatic, dismissal; second, such power should be used by the court in conjunction with its exercise of sound discretion in accordance with the tenets of justice and fair play, as well as with a great deal of circumspection in consideration of all attendant circumstances.”


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Effect of failure to pay docket fee on supplemental complaint In a case, the respondent argued that the failure of the plaintiff

to pay the filing fees on their supplemental complaint is fatal to their action. The Court ruled that the trial court acquired jurisdiction over plaintiffs’ action from the moment they filed their original complaint accompanied by the payment of the filing fees due on the same. The plaintiffs’ nonpayment of the additional filing fees due on their additional claims did not divest the RTC of the jurisdiction it already had over the case (Do-All Metals Industries, Inc. v. Security Bank Corporation, G.R. No. 176339, January 10, 2011).

Payment of docket fees for cases on appeal 1. The Rules of Civil Procedure, as amended, which took

effect on July 1,1997, now requires that appellate docket and other lawful fees must be paid within the same period for taking an appeal. This is clear from the opening sentence of Sec. 4, Rule 41 of the same rule that, “Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees.”

2. The Supreme Court has consistently held that 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 executory (Regalado v. Go, 514 SCRA 616, 634). Hence, non-payment is a valid ground for the dismissal of an appeal (M.A. Santander Construction, Inc. v. Villanueva, 441 SCRA 525, 530). However, delay in the payment of the docket fees confers upon the court a discretionary, not a mandatory power to dismiss an appeal (Villamor v. Court of Appeals, 434 SCRA 565, 571-572).


Payment of full docket fees within the prescribed period for taking an appeal is, as a rule, mandatory

A more recent reiteration of the above rule is found in Julian v. Development Bank of the Philippines, G.R. No. 174193, December 7, 2011, which declared:

“It is well-established that ‘[t]he right to appeal is a statutory privilege and must be exercised only in the manner and in accordance with the provisions of the law.’”

Thus, one who seeks to avail of the right to appeal must strictly comply with the requirements of the rules, and failure to do so leads to the loss of the right to appeal.”

The applicable rule for appeals from judgments issued by the RTC in the exercise of its original jurisdiction is Rule 41 of the Rules of Court, Sec. 4 of which provides:

Section 4. Appellate court docket and other lawful fees. — Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawfiil fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal.

The Rules also provide that failure of the appellant to pay the docket and other lawful fees is a ground for dismissal of the appeal.

The Court has consistently ruled in a number of cases that the payment of the full amount of docket fees within the prescribed period is both mandatory and jurisdictional. It is a condition sine qua non for the appeal to be perfected and only then can a court acquire jurisdiction over the case. The requirement of an appeal fee is not a mere technicality of law or procedure and should not be undermined except for the most persuasive of reasons. Non-observance would be tantamount to no appeal being filed thereby rendering the challenged decision, resolution or order final and executory.

Admittedly, this rule is not without recognized qual-ifications. The Court has declared that in appealed cases.


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failure to pay the appellate court docket fee within the prescribed period warrants only discretionary as opposed to automatic dismissal of the appeal and that the_ court shall exercise its power to dismiss in accordance with the tenets of justice and fair play and with great-deaLoL circumspection considering all attendant circumstances” (Citations omitted; Underscoring supplied).

2. ANSWER

Nature of an answer The answer is a pleading in which a defending party sets forth

his defenses (Sec. 4, Rule 6, Rules of Court). This pleading may be an answer to the complaint, an answer to a counterclaim or an answer to a cross-claim. There is no answer to a reply but there could be an answer to a third- party complaint or complaint-in-intervention.

Defenses in the answer 1. An answer contains the defenses of the answering party.

These defenses may either be negative or affirmative. (Sec. 5, Rule 6, Rules of Court).

2. A defense is negative when the material averments alleged in the pleading of the claimant are specifically denied.

Under the Rules a negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause of action or defense (Sec. 5, Rule 6, Rules of Court). A negative defense is stated in the form of a specific denial and the kinds of specific denials are described in Sec. 10 of Rule 8. If the denial is not one of those described under the said provision, the denial is deemed to be general. A general denial is considered an admission.

Effect of absence of a specific denial 1. Under Sec. 11 of Rule 8, material averments in the

complaint (other than those as to the amount of unliquidated damages), not specifically denied shall be deemed admitted.


If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34.

2. An admission in a pleading cannot be controverted by the party making such admission because the admission is conclusive as to him. All proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether an objection is interposed by a party or not (Republic v. Sarabia, 468 SCRA 142, 150). Said admission is a judicial admission, having been made by a party in the course of the proceedings in the same case, and does not require proof. A party who desires to contradict his own judicial admission may do so only by either of two ways: (a) by showing that the admission was made through palpable mistake, or (b) that no such admission was made (Sec. 4, Rule 129, Rules of Court).

Purpose of a specific denial The purpose of requiring the defendant to make a specific

denial is to make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial. The parties are compelled to lay their cards on the table (Philippine Bank of Communications v. Go, 642 SCRA 693, 707, February 14, 2011 citing Aquintey v. Tibong, 511 SCRA 414, 432).

Kinds of specific denials (Bar 2011) 1. A denial is not specific simply because it is so qualified by

the defendant. A general denial does not become specific by the use of the word “specifically.” Merely uttering “specific denial” is ineffective if the denial does not conform to the methods of denial provided for by the Rules of Court. It amounts to an admission under Rule 8, Sec. 11 of the Rules of Court. There is no need for the other party to present evidence to support its allegations because of petitioner’s implied admission thereof (Camitan v. Court of Appeals, 511 SCRA 364, 373-374).


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2. There are three types of specific denials mentioned Sec. 10 of Rule 8 of the Rules of Court, namely:

(a) The defendant specifies each material allegation of fact the truth of which he does not admit and, whenever practicable, sets forth the substance of the matters upon which he relies to support his denial. This kind of denial is an absolute denial (Sec. 10, Rule 8 of the Rules of Court; Bar 2011; Philippine Bank of Communications v. Go, 642 SCRA 693, 707, February 14, 2011).

Example: “Defendant denies the truth of the allegations in par. 7 of the complaint alleging that he owes the plaintiff P450,000.00, the truth of the matter being that it is the Plaintiff who owes the defendant the same amount.”

Here the defendant absolutely denies his liability and alleges what to him are the actual facts. In making a specific denial, reference must be made to the paragraph sought to be denied. Since the rule requires that the defendant must “specify each material allegation of fact,” a denial of the allegations in each paragraph is required. A blanket denial which reads: “Defendant specifically denies all the material allegations of the complaint,” is not a specific denial. The use of the word “specific” does not make it specific. The blanket denial is actually a general denial which in effect, is an admission.

(b) Another type of a specific denial is where the defendant does not make a total denial of the material allegations in a specific paragraph. In this type of denial, he denies only a part of the averment. If he chooses this type of denial, he specifies that part the truth of which he admits and denies only the remainder. This denial known is known as a partial denial.

Example: In an action for damages, the defendant avers: “Defendant admits the allegations in


paragraph 5 of the complaint, that Plaintiff sustained injuries when his car collided with the herein Defendant’s car, but denies the allegation that the collision occurred through Defendant’s fault.”

(c) One type of a specific denial is where the defendant alleges that he “is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint.” This type of specific denial called a denial by disvowal of knowledge, must be made sincerely and in good faith (Warner Barnes & Company v. Reyes, 103 Phil. 662, 665).

When the defendant alleges having no knowledge or information sufficient to form a belief as to the truth of the allegations of the other party but such matters are plainly and necessarily within the defendant’s knowledge, a claim of “ignorance or lack of information” will not be considered as a specific denial (Aquintey v. Tibong, 515 SCRA 414, 433; Camitan v. Court of Appeals, 511 SCRA 364, 373).

Example-. Mr. D signs a promissory note in favor of Mr. P. Since Mr. D failed to pay despite demand, suit was brought against him. The complaint duly pleaded the promissory note as an actionable document. Mr. D denies the alleged promissory note by averring lack of knowledge of the note. This averment appears to be one in bad faith and shall be considered as an admission because it is absurd for Mr. D not to know of the promissory note he himself signed (Bar 1993; Bar 1978).

In an action to foreclose a mortgage, a denial that the defendant is without any knowledge of his having signed a deed of mortgage when the facts and the actionable document forming the basis of the claim incontrovertibly show that he so executed the document denied, is a denial in bad faith. This denial amounts to an admission (Bar 2005; Bar 2004).

While a pleader is allowed to allege that he is without knowledge or information sufficient to form a belief as to the


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truth of a material averment made in the complaint, this rule shall not apply where the fact as to which a lack of knowledge is asserted is, to the knowledge of the court, so plainly within the defendant’s knowledge that his averment of ignorance must be palpably untrue (Warner Barnes & Co., Ltd. v. Reyes, 103 Phil. 662, 665).

Negative pregnant A negative pregnant does not qualify as a specific denial. It is

conceded to be actually an admission. In a pleading, it is a negative implying also an affirmative and

which although is stated in a negative form really admits the allegations to which it relates (Cramer v. Aiken, 63 App. D.C. 16, 68 F .2d 761, 762, cited in Black’s, 5th ed. 930).

Example'. A complaint alleges: “Plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2006 in Baguio City.” The defendant in his answer alleges: “Defendant specifically denies that Plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2006 in Baguio City.” The answer is a mere repetition of the allegations made in the complaint. The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place? The effect of this kind of denial is an admission.

When a specific denial must be coupled with an oath (Bar 2010) 1. As a rule, a negative defense is sufficient if made in the

form of a specific denial of the material allegations alleged in the pleading of the claimant. There are however, instances when a mere specific denial is not sufficient for a negative defense. In certain cases, the specific denial must be made under oath and in these instances a mere specific denial is not enough to produce the kind of denial under the Rules. These are:

(a) a denial of an actionable document (Sec. 8, Rule 8, Rules of Court)-, and


(b) a denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8, Rules of Court).

2. Whenever an action or defense is based or founded upon a written instrument or document, said instrument or document is deemed an actionable document.

If the pleader has an actionable document, under the Rules, the substance of the promissory note shall be set forth in the pleading and the original or copy thereof shall be attached to the pleading as an exhibit. When attached as an exhibit the promissory note shall be deemed a part of the pleading. The copy of the note may also with like effect be set forth in the pleading (Sec. 7, Rule 8, Rules of Court). When the manner of alleging the document is done in accordance with the Rules, the actionable document is deemed to have been properly pleaded.

Now, if the adverse party desires to deny the genuineness and the due execution of the actionable document, he must do two things: (a) to specifically deny the genuineness and due execution of the document, and to set forth what he claims to be the facts, and (b) to make the denial under oath (Sec. 8, Rule 8, Rules of Court).

If he does not specifically deny the genuineness and due execution of the document under oath, he is deemed to have admitted the genuineness and due execution of that document. Because of this admission, he can no longer deny that the note was forged or that there was no authority to execute the instrument. These defenses are barred by the admission. May he however, still defend by showing that the note was executed by fraud, or that the note has prescribed or was already paid? Answer: Yes, he can because these defenses are not barred by the admission.

It was ruled that the failure to deny the genuineness and due execution of an actionable document does not preclude a party from arguing against it by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppel, and want of consideration (Acabal v. Acabal, 454 SCRA 555, 569).


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3. Allegations of usury will be deemed admitted if not denied under oath. However, not every allegation of usury requires a denial under oath. The allegations of usury which requires a specific denial under oath must be:

(a) allegations of usury in a complaint (not allegations of usury in the answer), and

(b) the complaint is filed to recover usurious interests (Sec. 11, Rule 8, Rules of Court).

Matters not deemed admitted by the failure to make a specific denial

The provisions of Sec. 11 of Rule 8 establish the rule that material allegations in the complaint not specifically denied are deemed admitted. The following are nevertheless, not deemed admitted by the failure to make a specific denial in a party’s responsive pleading:

(a) The amount of unliquidated damages (Sec. 11, Rule 8, Rules of Court).

(b) Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading (Sec. 1, Rule 8, Rules of Court).

(c) Non-material averments or allegations are not deemed admitted because only material allegations have to be denied (Sec. 11, Rule 8, Rules of Court).

Affirmative defenses

1. A defense is affirmative wheii it alleges new matters which, while hypothetically admitting the allegations of the pleading of the claimant, would nevertheless, prevent or bar recovery by the claiming party (Sec. 5, Rule 6, Rules of Court).

2. An affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one which, if established, will be a good defense, i.e., an “avoidance” of the claim. An affirmative defense includes fraud, statute of limitations, release, payment, illegality, stat


ute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance (Pesane Animas Mongao v. Pryce Properties Corp., 467 SCRA 201, 214).

Allegations presented in the answer as affirmative defenses are not automatically characterized as such. Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action (Pesane Animas Mongao v. Pryce Properties Corp., supra).

An answer may allege affirmative defenses which may strike down the plaintiffs cause of action. When the answer asserts affirmative defenses, there is proper joinder of issues which must be ventilated in a full-blown trial on the merits and cannot be resolved by mere judgment on the pleadings (Pesane Animas Mongao v. Pryce Properties Corp., supra).

2(a). DEFAULT Nature of default

1. Default is a procedural concept that occurs when the defending party fails to file his answer within the reglementary period (Bar 1999). It does not occur from the failure of the defendant to attend either the pre-trial or the trial.

A declaration or order of default is issued as a punishment for unnecessary delay in joining issues (Vlason Ente- prises Corporation v. Court of Appeals, G.R. Nos. 121662-64, July 6, 1999).

2. The failure of the defendant to appear at the pre-trial while a cause for the court to order the plaintiff to present his evidence ex parte and for the court to render judgment on the basis thereof (Sec. 5, Rule 18, Rules of Court), is not a ground for a default. Under the Rules, this consequence is not to be called a declaration of default.

3. The defendant’s non-appearance in the hearing and the failure to adduce evidence does not constitute default when an answer has been filed within the reglementary


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period. The failure of the defendant to attend the hearings for the presentation of the evidence of the adverse party amounts not to a default, but to a waiver of the defendant’s right to object to the evidence presented during such hearings and to cross-examine the witnesses presented. It is error for the court to issue an order not denominated as an order of default but provides for the application of the effects of default as when the defendant who has filed an answer is not allowed to present evidence because of her absence during the presentation of evidence by the plaintiff (Monzon Spouses Relova v. Addio Properties, Inc., 565 SCRA 514, 524).

4. It is error to declare a defendant in default where an answer has already been filed (Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451).

Requisites before a party may be declared in default (Bar 1999) 1. The following are the requisites before a party may be

declared in default: (a) There must be a motion to declare the defending party in

default filed by the claiming party; (b) Summons has been validly and previously served upon

him; (c) The defending party must have failed to file his answer

within the reglementary period or within the period fixed by the court;

(d) There must be proof of the failure to file the answer; (e) The defending party must be notified of the motion to

declare him in default (Sec. 3, Rule 9, Rules of Court); and

(f) There must be a hearing set for the motion to declare the defendant in default.

The required hearing of the motion is mandated by Sec. 4 of Rule 15 which specifically provides:


“Sec. 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant” (Underscoring ours).

2. There is no justification for the trial judge for not hearing the motion and for hastily granting the motion to declare the defendant in default prior to the scheduled hearing of the motion on the ground that it had found the motion to be impressed with merit. The error of the trial judge is compounded by his having ignored the opposition of the defendant to the motion to declare him in default and the denial of his motion to admit answer filed prior to the hearing.

Indeed, in totally disregarding the purpose for which the filing of a motion and notice to defending party are required by the Rules, the trial court had acted in a despotic manner that is correctly assailed through a petition for certiorari which petitioners have seasonably filed with the Court of Appeals (Spouses de los Santos v. Carpio, 501 SCRA 390, 400).

3. “Prior to the present rule on default introduced by the 1997 Rules of Civil Procedure, as amended, Section 1 of the former Rule 18 on default is silent on whether or not there is a need for a notice of a motion to declare defendant in default. However, the present rule expressly requires that the motion of the claiming party should be with notice to the defending party. The purpose of a notice of a motion is to avoid surprises on the opposite party and to give him time to study and meet the arguments. The notice of a motion is required when the party has the right to resist the relief sought by the motion and principles of natural justice demand that his right be not affected without an opportunity to be heard.

Therefore, as the present rule on default requires the filing of a motion and notice of such motion to the defending party, it is not enough that the defendant failed to answer the complaint within the reglementary period to be a sufficient ground for declaration in default. The motion must also be heard” (Spouses de los Santos v. Carpio, supra at 399-400).


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The elements of a valid declaration of default A valid declaration of default requires compliance with the

following: (a) the court has validly acquired jurisdiction over the person

of the defending party either by service of summons or voluntary appearance;

(b) the defending party failed to file the answer within the time allowed therefor; and

(c) a motion to declare the defending party in default has been filed by the claiming party with notice to the defending party (Sablas v. Sablas, 526 SCRA 292, 296).

No motu proprio declaration of default 1. The court has no authority to motu proprio declare the

defendant in default. A motion to declare the defending party must be filed by the claiming party before a declaration of default is made by the court. The rule is clear. Sec. 3 of Rule 9 provides “ . . . upon motion of the claiming party...”

2. Before the defending party can be declared in default, (a) the claiming party must file a motion to declare said defending party in default; (b) the defending party must be notified of the motion to declare him in default; and (c) the claiming party must prove that the defending party has failed to answer within the period provided by the Rules of Court.

The Rule on default requires the filing of a motion and notice of such motion to the defending party. It is not enough that the defendant fails to answer the complaint within the reglementary period. The trial court cannot motu proprio declare a defendant in default as the rules leave it up to the claiming party to protect his or its interests. The trial court should not under any circumstances act as counsel of the claiming party (Sablas v. Sablas, 526 SCRA 292, 297).


Failure to file response under the Rule of Procedure for Small Claims Case

1. A motion to declare the defendant in default is a prohibited motion under Sec. 14(h) of the Rule of Procedure for Small Claims Cases.

Should the defendant fail to file his response within the required period, and likewise fail to appear at the date set for hearing, the court shall render judgment on the same day as warranted by the facts (Sec. 12, Rules of Procedure for Small Claims Cases).

2. Should the defendant fail to file his response within the required period but appears at the date set for hearing, the court shall ascertain what defense he has to offer and proceed to hear, mediate or adjudicate the case on the same day as if a Response has been filed (Sec. 12, Rules of Procedure for Small Claims Cases).

Failure to file an answer under the Rule of Procedure for Environmental Cases

A motion to declare the defendant in default is a prohibited motion (Sec. 2, Rule 2, Part II, Rule of Procedure for Environmental Cases). Should the defendant fail to answer within the period provided, the court shall declare the defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for (Sec. 15, Rule 2, Part II, Rules of Procedure for Environmental Cases). Note that it is the court which shall on its own motion declare the defendant in default. In ordinary civil actions, a motion to declare the defendant in default is required before the court declares the defendant in default (Sec. 3, Rule 9, Rules of Court).

Failure to file a return under the Rule on the Writ of Amparo 1. The Rule on the Writ of Amparo prohibits under Sec.

11(h) thereof a motion to declare the respondent in default. 2. Upon the service of the Writ of Amparo, the respondent is

required to file a verified written return which, among


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others, contains his lawful defenses (Sec. 9, Rule on the Writ of Amparo). In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte (Sec. 12, Rule on the Writ of Amparo).

Failure to file a return under the Rule on the Writ of Habeas Data 1. The Rule on the Writ of Habeas Data under Sec. 13(h)

thereof does not allow the filing of a motion to declare the respondent in default.

2. If the respondent fails to file his return which contains, among others, his lawful defenses, the court, judge, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence (Sec. 14, Rule on the Writ of Habeas Data).

Failure to file an answer under the 1991 Revised Rules on Summary Procedure

1. A motion to declare the defendant in default is a prohibited motion under Sec. 19(h) of the 1991 Revised Rule on Summary Procedure (Bar 1988).

Under the Rule on Summary Procedure, the defendant who fails to file an answer within the reglementary period is not supposed to be declared in default. Instead, the court motu proprio, or on motion of the plaintiff, shall render judgment (not to declare the defendant in default) as may be warranted by the facts alleged in the complaint and limited to what is prayed for (Sec. 6, II, 1991 Rule on Summary Procedure). This represents a principal distinction between default in regular civil proceedings and the rule on summary procedure (Bar 1988).

Effect of a declaration/order of default 1. The party declared in default loses his standing in court.

The loss of such standing prevents him from taking part in the trial (Sec. 3[a], Rule 9, Rules of Court).


2. While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings (Sec. 3[a], Rule 9, Rules of Court). It is submitted that he may participate in the trial, not as a party but as a witness.

3. A declaration of default is not an admission of the truth or the validity of the plaintiffs claims (Monarch Insurance v. Court of Appeals, 333 SCRA 71, 93; Vlason Enterprises Corporation v. Court of Appeals, 310 SCRA 26, 64).

In very clear terms, it was held:

“A judgment of default does not imply a waiver of rights except that of being heard and presenting evidence in defendant’s favor. It does not imply admission by the defendant of the facts and causes of action of the plaintiff, because the codal section requires the latter to adduce evidence in support of his allegations as an indispensable condition before final judgment could be given in his favor. Nor could it be interpreted as an admission by the defendant that the plaintiffs causes of action find support in the law or that the latter is entitled to the relief prayed for x x x ” (Monarch Insurance v. Court of Appeals, 333 SCRA 71, 93).

Effect of partial default (Bar 2011) When a pleading asserts a claim against several defending

parties and some file and serve their answers but the others do not, the court shall try the case against all the defending parties based on the answers filed and render judgment upon the evidence presented where the claim states a common cause of action against them (Sec. 3[c], Rule 9, Rules of Court).

Action of the court after the declaration/order of default 1. Under the rules, when a party is declared in default, the

court may do either of two things: (a) to proceed to render judgment granting the claimant such

relief as his pleading may warrant; or


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(b) to require the claimant to submit to his evidence ex parte. 2. The choice of which action to take is a matter of judicial

discretion (Sec. 3, Rule 9, Rules of Court). Under the previous rule, the court had no power to render judgment immediately after the declaration or order of default. It had to require the reception of evidence by the plaintiff but done without the participation of the defendant who has already lost his standing in court. The court, under current rules may, at its discretion, select from the options granted to it by the Rules of Court.

Court not required to receive evidence personally The court need not personally receive the evidence if it decides

to hear the evidence of the plaintiff. The reception of the evidence may be delegated to the clerk of court (Sec. 3, Rule 9, Rules of Court; Bar 2011).

Admission of answer filed out of time 1. It is within the sound discretion of the trial court to

permit the defendant to file his answer and to be heard on the merits even after the reglementary period for filing the answer expires. The Rules of Court provides for discretion on the part of the trial court not only to extend the time for filing an answer but also to allow an answer to be filed after the reglementary period (Sablas v. Sablas, 526 SCRA 292, 297).

Under the Rules, the court may extend the time to plead upon motion and upon such terms as are just. The court may also allow an answer or other pleading to be filed after the time fixed by the Rules (Sec. 11, Rule 11, Rules of Court).

2. Thus, it was held that the appellate court erred when it ruled that the trial court had no recourse but to declare petitioner spouses in default when they failed to file their answer on or before the reglementary period. It was also held in the same case that the trial court correctly admitted the answer of the petitioner spouses even if it was filed out of time because, at the time of its filing, they were not yet declared in


default nor was a motion to declare them in default ever filed. Neither was there a showing that petitioner spouses intended to delay the case.

It is not correct to say that a trial court has no recourse but to declare a defending party in default when he fails to file an answer within the required period. The rule is that the defendant’s answer should be admitted where it is filed before a declaration of default and no prejudice is caused to the plaintiff (Sablas v. Sablas, 526 SCRA 292, 297).

3. Where the answer is filed beyond the reglementary period but before the defendant is declared in default and there is no showing that defendant intends to delay the case, the answer should be admitted (San Pedro Cineplex Properties, Inc. v. Heirs of Manuel Humada Enano, 635 SCRA 421, 424- 425, November 17, 2010).

4. The hornbook rule is that default judgments are generally disfavored (Paramount Insurance Corp. v. A.C. Ordonez Corporation, 561 SCRA 327, 334).

Remedies of a defending party declared in default (Bar 1998) (a) Remedy after notice of order and before judgment — A

party declared in default may, at any time after notice thereof and before judgment, file a motion under oath to set aside the order of default and properly show that (a) the failure to answer was due to fraud, accident, mistake, or excusable negligence (FAMEN), and that (b) he has a meritorious defense, i.e., there must be an affidavit of merit (Sec. 3[b], Rule 9, Rules of Court; See also Villareal v. Court of Appeals, 295 SCRA 511, 529; Bar 2000; Bar 1999; Republic v. Sandiganbayan, 540 SCRA 431, 445).

(b) Remedy afterjudgment and before judgment becomes final and executory — If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a Motion for New Trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law (Lina v. Court of Appeals, 135 SCRA 637, 642; Republic v. Sandiganbayan, 540 SCRA 431, 445).


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(c) Remedy after the judgment becomes final and executory — The defendant may file a petition for relief from judgment under Rule 38 (Republic v. Sandiganbayan, 540 SCRA 431, 445; Laus v. Court of Appeals, G.R. No. 101256, March 8, 1993).

Note: Where the defendant has however, been wrongly or improvidently declared in default, as when a timely answer has been served and filed, the court can be considered to have acted with grave abuse of discretion amounting to lack of jurisdiction, an act correctible by a petition for certiorari under Rule 65.

Current judicial trend on defaults 1. The current judicial trend is to avoid defaults and thus,

courts are enjoined to be liberal in setting aside orders of default (Ampeloquio v. Court of Appeals, 333 SCRA 465; Bar 1999; Bar 2000; Bar 1983).

2. The issuance of orders of default should be the exception rather than the rule and to be allowed only in clear cases of obstinate refusal by the defendant to comply with the orders of the trial court (Lorbes v. Court of Appeals, 351 SCRA 716, 724) because suits should, as much as possible, be decided on the merits and not on technicalities (See also Samartino v. Raon, 383 SCRA 664, 673). Thus, in practice, an answer under oath containing the defenses of the defendant, may under the rules on liberal interpretation, be deemed as the equivalent of an affidavit of merit.

3. The policy of the law is to have every litigant’s case tried on the merits as much as possible. Hence, judgments by default are frowned upon. A case is best decided when all contending parties are able to ventilate their respective claims, present their arguments and adduce evidence in support thereof (Sablas v. Sablas, 526 SCRA 292, 279).

Implied lifting of the order of default May a default order be impliedly lifted? In one case, former

President Marcos was declared in default for failure


to file an answer. He died in Hawaii as an exile while his case was pending. His representatives failed to file a motion to lift the order of default. Nevertheless, his son, Ferdinand Marcos, Jr., the respondent in this case, and as executor of his father’s estate, filed a motion for leave to file a responsive pleading and three motions for extensions to file an answer, all of which were granted by the anti-graft court. Instead of filing a responsive pleading, respondent later filed a motion for bill of particulars which was also granted.

Invoking Section 3, Rule 9 of the 1997 Rules of Civil Procedure, the Government as the petitioner argued that since the default order against former President Marcos has not been lifted by any court order, respondent cannot file a motion for a bill of particulars. Petitioner stressed that since respondent did not file a motion to lift the default order as executor of his father’s estate, thus, he and the estate cannot take part in the trial.

Petitioner also contends that while respondent was previously granted leave to file an answer to the expanded complaint, he was not expressly granted leave to file motion for a bill of particulars. It was argued that the anti-graft court should not have accepted the motion for a bill of particulars after he had filed a motion for leave to file responsive pleading and three successive motions for extension as the motion for a bill of particulars is obviously dilatory.

In a nutshell, the ultimate issue according to the Court, was: Did the court commit grave abuse of discretion amounting to lack or excess of jurisdiction in granting respondent’s motion for a bill of particulars as executor of former President Marcos’ estates considering that the deceased defendant was then a defaulting defendant when the motion was filed?

The Court held:

“[Th]e [Court] rule[s] in the negative, and dismiss the instant petition for utter lack of merit.

Under the Rules of Court, a defending party may be declared in default, upon motion and notice, for failure to


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file an answer within the allowable period. As a result, the defaulting party cannot take part in the trial albeit he is entitled to notice of subsequent proceedings.

In this case, former President Marcos was declared in default for failure to file an answer. He died in Hawaii as an exile while this case was pending, since he and his family fled to Hawaii in February 1986 during a people- power revolt in Metro Manila. His representatives failed to file a motion to lift the order of default. Nevertheless, respondent, as executor of his father’s estate, filed a motion for leave to file a responsive pleading, three motions for extensions to file an answer, and a motion for bill of particulars all of which were granted by the anti-graft court.

Given the existence of the default order then, what is the legal effect of the granting of the motions to file a responsive pleading and bill of particulars? In [the Court’s] view, the effect is that the default order against the former president is deemed lifted (Italics supplied).

Considering that a motion for extension of time to plead is not a litigated motion but an ex parte one, the granting of which is a matter addressed to the sound discretion of the court; that in some cases [th]e [Court] ha[s] allowed defendants to file their answers even after the time fixed for their presentation; that [th]e [Court] ha[s] set aside orders of default where defendants’ failure to answer on time was excusable; that the pendency of the motion for a bill of particulars interrupts the period to file a responsive pleading; and considering that no real injuiy would result to the interests of petitioner with the granting of the motion for a bill of particulars, the three motions for extensions of time to file an answer, and the motion with leave to file a responsive pleading, the anti- graft court has validly clothed respondent with the authority to represent his deceased father. The only objection to the action of said court would be on a technicality. But on such flimsy foundation, it would be erroneous to sacrifice the substantial rights of a litigant. Rules of procedure should be liberally construed to promote their ob-jective in assisting the parties obtain a just, speedy and inexpensive determination of their case.


While it is true that there was no positive act on the part of the court to lift the default order because there was no motion nor order to that effect, the anti-graft court’s act of granting respondent the opportunity to file a responsive pleading meant the lifting of the default order on terms the court deemed proper in the interest of jus-tice. It was the operative act lifting the default order and thereby reinstating the position of the original defendant whom respondent is representing, founded on the court’s discretionary power to set aside orders of default (Under-scoring supplied).

It is noteworthy that a motion to lift a default order requires no hearing; it need be under oath only and ac-companied by an affidavit of merits showing a meritori-ous defense. And it can be filed “at any time after notice thereof and before judgment.” Thus, the act of the court in entertaining the motions to file a responsive pleading during the pre-trial stage of the proceedings effectively meant that respondent has acquired a locus standi in this case. That he filed a motion for a bill of particulars instead of an answer does not pose an issue because he, as party defendant representing the estate, is allowed to do so under the Rules of Court to be able to file an intelligent answer. It follows that petitioner’s filing of a bill of particulars in this case is merely a condition precedent to the filing of an answer.

Indeed, failure to file a motion to lift a default order is not procedurally fatal as a defaulted party can even avail of other remedies mentioned above. (Italics supplied).

As default judgments are frowned upon, [th]e [Court] ha[s] been advising the courts below to be liberal in setting aside default orders to give both parties every chance to present their case fairly without resort to technicality. But as defaulted defendants are not actually thrown out of court because the Rules see to it that judgments against them must be in accordance with the law and competent evidence, this Court prefers that the lifting of default orders be effected before trial courts could receive plaintiffs’ evidence and render judgments. This is so since judgments by default may result in considerable injustice to defendants, necessitating careful


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tion of the grounds in motions seeking to set them aside. The inconvenience and complications associated with rectifying resultant errors, if defendant justifies his omission to seasonably answer, far outweigh the gain in time and dispatch of immediately trying the case. The fact that former President Marcos was in exile when he was declared in default, and that he later died still in exile, makes the belated filing of his answer in this case understandably excusable” (Republic v. Sandiganbayan, 540 SCRA 431, 444-448).

Extent of relief in a judgment by default If the complaint seeks to recover PI million but the evidence of

the plaintiff shows a right to recover PI.5 million, the court has no authority to grant the latter amount despite the evidence. This is because under the Rules, “A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages” (Sec. 3[d], Rule 9, Rules of Court).

Cases where a declaration/order of default cannot be made

1. Default is not allowed in the following actions:

(a) annulment of marriage;

(b) declaration of nullity of marriage; and

(c) legal separation (Sec. 3[e], Rule 9). 2. If no answer is filed in any of the above actions, the court

shall order the prosecuting attorney to investigate whether or not collusion exists between the parties. If there is no collusion, the court shall order said prosecuting attorney to intervene for the State in order to see to it that the evidence submitted is not fabricated (Sec. 3[e], Rule 9, Rules of Court).

Judgment by default for refusal to comply with the modes of discovery

The rule is that a default order and consequently a default judgment is triggered by the failure of the defending party to


file the required answer (Sec. 3, Rule 9, Rules of Court). By way of exception, a judgment by default may be rendered in the following cases despite an answer having been filed:

(a) If a disobedient party refuses to obey an order requiring him to comply with the various modes of discovery ("Sec. 3[c], Rule 29, Rules of Court); or

(b) If a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition or a party fails to serve answers to interrogatories (Sec. 5, Rule 29, Rules of Court).

3. COUNTERCLAIM

Nature of a counterclaim (Bar 1999; 2010) 1. A counterclaim is any claim, which a defending party may

have against an opposing party (Sec. 6, Rule 6, Rules of Court). It partakes of a complaint by the defendant against the plaintiff.

It is in itself a distinct and independent cause of action and when filed, there are two simultaneous actions between the same parties (Pro-Line Sports Center, Inc. v. Court of Appeals, 281 SCRA 162). A counterclaim is a pleading (Bar 2007).

2. A counterclaim is described by the Rules of Court as any claim. This may refer to a claim for (a) money, or (b) some other relief against an opposing party (Yulienco v. Court of Appeals, 308 SCRA 206). A counterclaim is permitted by the Rules as a way of preventing multiplicity of suits by allowing in one action the determination of the entire controversies between the parties (Raymundo v. Felipe, 42 SCRA 615).

3. When the defendant files a counterclaim against the plaintiff, the defendant becomes the plaintiff in the counterclaim while the original plaintiff becomes the defendant. The filing of a counterclaim gives rise to two complaints, namely, the one filed by the plaintiff by way of an original complaint and the one filed by the defendant by way of a counterclaim.


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To illustrate: PP files a complaint for unlawful detainer against DD. The latter files an answer together with a claim for reimbursement of all the expenses he incurred in repairing the building subject of the lease, the claim for reimbursement is a counterclaim and is in the nature of a complaint by the defendant against the plaintiff.

4. A counterclaim is not intrinsically a part of the answer because it is a separate pleading. It may, however, be included in the answer. This inclusion is merely a matter of form and does not have the effect of fusing the two separate pleadings into a single pleading. Thus, it is not uncommon to denominate these two pleadings as: “Answer With A Counterclaim.”

Note however, that a “Motion To Dismiss With A Coun-terclaim” is not an accepted way of pleading a counterclaim. It is sanctioned neither by the Rules nor by common usage (Bar 1992; Bar 2008).

5. A counterclaim may be compulsory or permissive. A counterclaim that (1) arises out of (or is necessarily connected with) the transaction or occurrence that is the subject matter of the opposing party’s claim; (2) falls within the jurisdiction of the court and (3) does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction, is compulsory. Otherwise, a counterclaim is merely permissive (Mercado v. Court of Appeals, 569 SCRA 503, 508).

Compulsory counterclaim; tests 1. To be compulsory, the counterclaim, according to the

Rules, must have the following elements: (a) It arises out of, or is necessarily connected with the

transaction or occurrence which is the subject matter of the opposing party’s claim;

(b) It does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction; and


(c) It is cognizable by the regular courts of justice and the court has jurisdiction to entertain the counterclaim both as to the amount and nature (Sec. 7, Rule 6, Rules of Court; Arenas v. Court of Appeals; See for further readings Yulienco v. Court of Appeals, 308 SCRA 206; and Financial Building Corporation v. Forbes Park Association, 338 SCRA 346).

2. Based on the Rules, the Court has devised a more complete test, thus:

“(a) Are the issues of fact and law raised by the claim and the counterclaim largely the same?

“(b) Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule?

“(c) Will substantially the same evidence support or refute plaintiffs claim as well as the defendant’s counterclaim?

“(d) Is there any logical relation between the claim and the counterclaim?

“A positive answer to all four questions would indicate the counterclaim is compulsory” (GSIS v. Heirs of Caballero, G.R. No. 158090, October 4,2010; See also Sandejas v. Ignacio, 541 SCRA 61, 67).

One compelling test of compulsoriness is the logical relation between the claim alleged in the complaint and that in the counterclaim (Bayer Philippines, Inc. v. Court of Appeals, 340 SCRA 437, 444).

3. A counterclaim is compulsory under the following facts: Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed the value of the improvements she has introduced in the same land and the payment of damages she has sustained as a consequence of the suit. The claim of Lea arises out of, or is necessarily connected with the subject matter of the complaint (Bar 1994; Bar 1985).


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4. In actions to recover possession of real property, it has been held that a claim for compensation for improvements on land partakes of the nature of a compulsory counterclaim (Beltran v. Balbuena, 53 Phil. 697, 701; Meliton v. Court of Appeals, 216 SCRA 485, 493).

5. The most common compulsory counterclaim filed by the defendant in the absence of any other counterclaim is to claim in the same suit his expenses in the suit for being forced to litigate in the face of an allegedly unfounded and baseless complaint. Added to these expenses are the alleged damages he sustained as a consequence of the unfounded complaint (Bar 2007; Bar 2008).

6. The mere logical connection between the complaint and the counterclaim will not give rise to a compulsory counterclaim where the counterclaim is not within the jurisdiction of the court. If the counterclaim exceeds the jurisdiction of the court, the counterclaim should be deemed permissive, not compulsory. Thus, a counterclaim for P500,000.00 in the Metropolitan Trial Court of Manila cannot be considered a compulsory counterclaim since the amount exceeds the court’s jurisdiction even if assuming, it is intimately connected with the subject matter of the complaint.

Despite the lack of jurisdiction of the court to adjudicate on the counterclaim, the same may nevertheless, be pleaded in the same action, not to obtain affirmative relief because the court, for want of jurisdiction, cannot do so. The purpose would merely be to weaken the plaintiff’s claim (Maceda v. Court of Appeals, 176 SCRA 440, 444 citing Agustin v. Bacalan, 135 SCRA 340). If the counterclaim in excess of the jurisdiction of the court is interposed in the same action, and the court finds both the complaint and the counterclaim meritorious, it will not grant the relief in the complaint on the ground that the defendant has a bigger credit (Calo v. Ajax International, Inc., 22 SCRA 996, 999; Reyes v. Court of Appeals, 38 SCRA 138, 151). It is submitted that if the defendant desires to have affirmative relief on his counterclaim, he may waive the amount in excess of the jurisdiction of the court.


7. There may be instances when the court has to dismiss the counterclaim for lack of jurisdiction over the subject matter. If the counterclaim, for instance, interposed in the Regional Trial Court is one for unlawful detainer, the same cannot be invoked as a counterclaim in the same action even if the amount of rentals or damages is within the jurisdiction of the Regional Trial Court. A Regional Trial Court cannot adjudicate upon an unlawful detainer case. Also, a counterclaim for illegal dismissal cannot be entertained by regular courts for want of jurisdiction. The subject matter of the counterclaim is within the jurisdiction of Labor Arbiters.

8. The absence of jurisdiction to entertain a counterclaim because of the amount thereof appropriately applies to a Municipal Trial Court and equivalent courts. Hence, a Municipal Trial Court in Bulacan will not have the jurisdiction to take cognizance of a counterclaim in excess of P300,000.00 and a Metropolitan Trial Court of Manila cannot assume jurisdiction over a counterclaim in excess of P400,000.00. The rule requires that the counterclaim “must be within the jurisdiction of the court both as to the amount and the nature thereof” (Sec. 7, Rule 6, Rules of Court).

The result will differ however, when the original action is filed with the Regional Trial Court. In this court, the counterclaim may be deemed compulsory regardless of the amount (Sec. 7, Rule 6, Rules of Court). Hence, a counterclaim of P350,000.00 filed in the Regional Trial Court of Manila is still a compulsory counterclaim even if the court would have no jurisdiction over the amount claimed if it is filed as an original complaint.

Sec. 7 of Rule 6 of the Rules of Court leaves no doubt as to the exact rule. It clearly provides that “ x x x in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount.”

Incompatibility between a compulsory counterclaim and a motion to dismiss

A party who desires to plead a compulsory counterclaim should not file a motion to dismiss. If he files a motion to dis


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miss and the complaint is dismissed, there will be no chance to invoke the counterclaim.

As succinctly put in one case: “A compulsory counterclaim is auxiliary to the pro-

ceeding in the original suit and derives its jurisdictional support therefrom. A counterclaim presupposes the exis-tence of a claim against the party filing the counterclaim. Hence, where there is no claim against the counterclaim-ant, the counterclaim is improper and it must dismissed, more so where the complaint is dismissed at the instance of the counterclaimant. In other words, if the dismissal of the main action results in the dismissal of the coun-terclaim already filed, it stands to reason that the filing of a motion to dismiss the complaint is an implied waiver of the compulsory counterclaim because the grant of the motion ultimately results in the dismissal of the counter-claim.

Thus, the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy. If he decides to file a motion to dismiss, he will lose his compulsory counterclaim. But if he opts to set up his compulsory counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer (Financial Building Corporation v. Forbes Park Association, 338 SCRA 346, 354).

Permissive counterclaim (Bar 2011) 1. Generally, a counterclaim is permissive if any of the

elements of a compulsory counterclaim discussed previously is absent. But the most commonly treated feature of a permissive counterclaim is its absence of a logical connection with the subject matter of the complaint, i.e., it does not arise out of, or is not connected with the plaintiffs cause of action

As once held: “A counterclaim is permissive if it does not arise out

of nor is necessarily connected with the subject matter


of the opposing party’s claim. It is not barred even if not set up” (International Container Terminal Services, Inc. v. Court of Appeals, 214 SCRA 456, 463).

2. A counterclaim for damages based on culpa aquili- ana in a complaint for collection of a loan is a permissive counterclaim for not having connection with the plaintiffs claim.

3. A counterclaim for damages based on a quasi-delict cannot be pleaded as a compulsory counterclaim in an action for unlawful detainer. The counterclaim is permissive (Arenas v. Court of Appeals, G.R. No. 126640, November 23, 2000).

4. A counterclaim for the payment of the price of the car is not a compulsory counterclaim in an action to recover a piece of land (Bar 1996).

Distinctions between a compulsory and a permissive coun-terclaim

The following are the most significant distinctions between the two counterclaims:

(a) A compulsory counterclaim which a party has at the time the answer is filed shall be contained in the answer (Sec. 8, Rule 11, Rules of Court) because a compulsory counterclaim not set up shall be barred (Sec. 2, Rule 9, Rules of Court).

A permissive counterclaim is not subject to the above rule. Hence, it may be set up as an independent action and will not be barred if not contained in the answer to the complaint.

(b) A compulsory counterclaim is not an initiatory pleading. A permissive counterclaim is considered an initiatory pleading.

(c) A permissive counterclaim should be accompanied by a certification against forum shopping and whenever required by law, also a certificate to file action issued by the Lupong Tagapamayapa. A compulsory counterclaim which cannot be independently set up,


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does not require the certificates mentioned because it is not initiatory in character (Santo Tomas University v. Surla, 294 SCRA 382, 392-393; Ponciano v. Parentela, 331 SCRA 605,611; Bar 2007). The certificates mentioned are required to be attached in a permissive counterclaim because it is an initiatory pleading.

(d) A permissive counterclaim must be answered by the party against whom it is interposed otherwise, he may be declared in default as to the counterclaim. This is because it was ruled that “Any pleading asserting a claim must be answered and the failure to do so by the party against whom the claim is asserted renders him to be declared in default in respect of such claim” (Sarmiento v. Juan, 120 SCRA 403, 408).

Failure to answer a compulsory counterclaim is not a cause for a default declaration (Gojo v. Goya- la, 35 SCRA 557, 563). A compulsory counterclaim that merely reiterates special defenses are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint, need not be answered. In such a case, failure to answer a compulsory counterclaim may not be a cause for a declaration of default (Gojo v. Goyala, 35 SCRA 557, 563).

Thus, if the plaintiff files an action to recover possession of real property against the defendant who interposed a counterclaim for damages and attorney's fees arising from the filing of the complaint, the counterclaim need not be answered by the plaintiff. A motion to declare him in default for failure to answer the counterclaim must be denied because the counterclaim is compulsory (Bar 1996).

On the other hand, if the counterclaim is for damages arising from the alleged tortious conduct of the plaintiff in a complaint to collect a sum of mon


ey, the defendant may file a motion to declare the plaintiff in default if he fails to file an answer to the counterclaim which is permissive.

(e) The docket and other lawful fees should be paid for a permissive counterclaim (La Tondena Distillers, Inc. v. Court of Appeals, 209 SCRA 553, 573-574). The rule in a permissive counterclaim is that for the trial court to acquire jurisdiction, the counterclaimant is bound to pay the prescribed docket fees. If a party does not pay the docket fees, the court did not acquire jurisdiction over his permissive counterclaim, and any order in favor of the counterclaimant arising from the counterclaim is considered null and void and may be struck down even on appeal (GSIS v. Heirs of Caballero, G.R. No. 158090, October 4, 2010).

Traditional jurisprudence has consistently held that docket fees are not paid for a compulsory counterclaim (Cabaero v. Cantos, 271 SCRA 391, 400; Metals Engineering Resources Corporation v. Court of Appeals, 203 SCRA 273,285; Bar 2008). The current rule appears different.

Be it noted however, that Rule 141 on Legal Fees was revised effective August 16, 2004, by A.M. No. 04-2-04-SC. The revision included the payment of docket fees not only for permissive counterclaims but also for compulsory counterclaims and crossclaims, third party complaints, fourth-party complaints, etc., and complaints-in-intervention.

One case of a more recent vintage, (Korea Tech-nologies Co., Ltd. v. Lerma, 542 SCRA 1, 17, January 7, 2008), acknowledged:

“On July 17, 1998, at the time PGSMC filed its Answer incorporating its counterclaims against KOGIES, it was not liable to pay filing fees for said counterclaims being compulsory


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in nature. We stress however, that effective August 16. 2004, under Sec. 7 of Rule 141. as amended by A.M. No. 04-2-04-SC. docket fees are now required to be paid in compulsory counterclaim or cross-claims.” (Underscoring supplied).

How to set up an omitted counterclaim A counterclaim not initially set up because of the pleader’s

oversight, inadvertence, excusable neglect or when justice requires, may be set up, by leave of court by amendment before judgment (Sec. 10, Rule 11, Rules of Court). If not set up in the action, the compulsory counterclaim shall be barred (Sec. 2, Rule 9, Rules of Court). .A permissive counterclaim however will not be barred. The bar of course refers to a compulsory counterclaim that a defending party has at the time he files the answer, i.e., a counterclaim already existing at the time the answer is filed (Sec. 8, Rule 11, Rules of Court).

How to set up a counterclaim arising after serving the pleading

A counterclaim, which either matured or was acquired by a party after serving his pleading, may, with the permission of the court, be presented as a counterclaim by supplemental pleading before judgment (Sec. 9, Rule 11, Rules of Court).

Period to answer a counterclaim If a counterclaim is to be answered, the same must be made

within ten (10) days from service (Sec. 4, Rule 11, Rules of Court). This rule has more relevance to a permissive counterclaim which has to be answered.

Effect of the dismissal of a complaint on the counterclaim already set up (Bar 2010)

1. There are three significant situations involving the dismissal of a complaint and the effect of such dismissal on the counterclaim already pleaded by the defending party.


(a) The first is the situation contemplated under the last paragraph of Sec. 6 of Rule 16. Here, the defendant does not file a motion to dismiss. Instead, he files an answer and utilizes certain grounds for a motion to dismiss as affirmative defenses. Included in the answer is a counterclaim. He then asks for a preliminary hearing on the affirmative defenses set up, a request granted by the court. During the hearing on the affirmative defenses, the court decides to dismiss the complaint. If the complaint is dismissed, the counterclaim, compulsory or permissive, is not dismissed.

Sec. 6 of Rule 16 is explicit:

“The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.”

(b) The second situation is covered by Sec. 2 of Rule 17. Under this provision, the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. The motion is granted by the court. The rule in this regard is unequivocal:

“. . . [T]he dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action x x x.”

(c) The third situation is covered by Sec. 3 of Rule 17. Here, the complaint is dismissed through the plaintiffs fault and at a time when a counterclaim has already been set up. Like the first two situations, the dismissal is “without prejudice to the right of the


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defendant to prosecute his counterclaim in the same or separate action.”

2. The above described situations have a common thread running through them. The rules cited recognize the right of the defending party to prosecute the counterclaim in the same or separate action notwithstanding the dismissal of the complaint, and without regard as to the permissive or compulsory nature of the counterclaim. With the aforestated rules in effect since July 1, 1997, previous jural pronouncements in conflict with the same, like that of BA Finance Corporation v. Co, et al., G.R. No. 105751, June 30, 1993 have been abandoned (Pinga v. Heirs of Santiago, 494 SCRA 393, 413).

4. CROSS-CLAIM

Nature of a cross-claim 1. A cross-claim is any claim by one party against a coparty

arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. The cross-claim may include a claim that the party against whom it is asserted is liable or maybe liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (Sec. 8, Rule 6, Rules of Court).

2. While a counterclaim is asserted by a defending party against a claimant, a cross-claim is asserted by a defending party against a co-defending party so that the latter may be held liable for the claim which the claimant seeks to recover from the cross-claimant. If XYZ Bank sues A and B for the collection of a loan, A, who merely acted as an accommodation party may file a cross-claim against his co-defendant, B by asserting that it is B who is the actual and true debtor and hence, should be ultimately liable for the payment of the loan (Bar 1997).

3. A cross-claim that a party has at the time the answer is filed shall be contained in said answer (Sec. 8, Rule 11, Rules of Court).


Broadly, this means that the cross-claim must be set up in the same action. If through oversight, inadvertence, or excusable negligence, it is not asserted, it may still be set up with leave of court, by amendment of the pleadings (Sec. 10, Rule 11, Rules of Court). It has to be set up in the action because if not set up it shall be barred (Sec. 2, Rule 9, Rules of Court). Note however, that the cross-claim that shall be barred if not asserted is the cross-claim already existing at the time the answer is filed, not the cross-claim that may mature or may be acquired after service of the answer. As to the latter, Sec. 9 of Rule 11 declares that it may, by permission of the court, be presented by supplemental pleading before judgment.

No cross-claim on appeal While a defendant may have a definite cause of action against

a co-defendant, it cannot succeed in seeking judicial sanction against the latter if the records disclose that no cross-claim was interposed, nor was there a prayer that the codefendant should be liable for all claims that may be adjudged in favor of the plaintiff. Under the Rules, a cross-claim not set up shall be barred. Thus, a cross-claim cannot be set up for the first time on appeal (Loadmasters Customs Services, Inc. v. Glodel Brokerage Corporation, G.R. No. 179446, January 10, 2011).

Distinctions between a counterclaim and a cross-claim (Bar 1999) 1. A cross-claim is a claim against a co-party; a coun-

terclaim is a claim against an opposing party; and 2. A cross-claim must arise from the transaction or

occurrence that is the subject matter of the original complaint or counterclaim (Sec. 8, Rule 6, Rules of Court). A counterclaim may or may not arise out of the subject matter of the complaint. It may be compulsory or permissive.

Period to answer a cross-claim A cross-claim must be answered within ten (10) days from

service (Sec. 4, Rule 11, Rules of Court).


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5. THIRD (FOURTH, ETC.)-PARTY COMPLAINT

Nature of a third-party complaint 1. This pleading is a claim which a defending party may,

with leave of court, file against a person who is not yet a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim (Sec. 11, Rule 6, Rules of Court). There could also be a fourth, etc. -party complaint with the same function as a third-party complaint.

2. A third-party complaint is actually a complaint independent of, and separate and distinct from the plaintiffs complaint. Were it not for the above rule, such third-party complaint would have to be filed independently and separately from the original complaint. The purpose is to avoid circuitry of action and unnecessary proliferation of lawsuits and of disposing expeditiously in one litigation all the matters arising from one particular set of facts.

Be that as it may, trial courts are not especially enjoined by law to admit a third-party complaint. They are vested with discretion to allow or disallow a party to an action to implead an additional party. Thus, a defendant has no vested right to file a third-party complaint (China Banking Corporation v. Padilla, 514 SCRA 35, 42).

3. It is not proper to file a third-party complaint against one who is already a party to the action such as against the plaintiff or a co-defendant. A claim against the plaintiff is asserted by way of a counterclaim. A claim by the defendant against his co-defendant is set up by way of a cross-claim. Thus, if Mr. S sells a car to Mr. B, and later, the real owner of the car, Mr. O files an action against Mr. B to recover the car, Mr. B may file a third-party complaint against Mr. S to require the latter to answer for the breach of warranty against eviction (Art. 1558, Civil Code of the Philippines).

Also, if the passenger of a taxicab sues the operator for breach of contract of carriage because of injuries sustained by him in a mishap, the operator may file a third-party complaint against the negligent driver for reimbursement.


4. B and C borrowed P400,000 from A. B, who received the money from A, gave C P200,000. C in turn gave by way of loan, P100,000 to D. C, if sued can file a third-party complaint against D (Bar 1997).

A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries. If X files an action for damages against A and B, B cannot file a third-party complaint against A because both are already parties to the action. B should instead file a cross-claim against A (Bar 1996).

5. Explains the Court in no uncertain terms:

“The third-party complaint is a procedural device whereby a ‘third party who is neither a party nor privy to the act or deed complained of by the plaintiff, may be brought into the case with leave of court, by the defendant, who acts as third-party plaintiff to enforce against such third-party defendant a right for contribution, indemnity, subrogation or any other relief, in respect of the plaintiffs claim. The third-party complaint is actu-ally independent of and separate and distinct from the plaintiffs complaint. Were it not for this provision of the Rules of Court, it would have to be filed independently and separately from the original complaint by the defendant against the third-party. But the Rules permit defendant to bring in a third-party defendant or so to speak, to litigate his separate cause of action in respect of plaintiffs claim against a third party in the original and principal case with the object of avoiding circuitry of action and unnecessary proliferation of lawsuits and of disposing expe-ditiously in one litigation the entire subject matter arising from one particular set of facts. Prior leave of Court is necessary, so that where the allowance of a third-party complaint would delay the resolution of the original case, such as when the third-party defendant cannot be located or where matters extraneous to the issue of possession would unnecessarily clutter a case of forcible entry, or the effect would be to introduce a new and separate controversy into the action, the salutary object of the rule would not be defeated, and the court should in such cases require


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the defendant to institute a separate action” (Spouses Uy v. Ariza, 499 SCRA 244, 251).

Leave of court The filing of a third party complaint requires leave of court

(Sec. 11, Rule 6, Rules of Court) and hence, its admission is subject to judicial discretion. Leave of court is not required in filing a counterclaim or a cross-claim.

Answer to a third-party complaint The time to answer a third-party complaint shall be governed

by the same rule as the answer to the complaint (Sec. 5, Rule 11, Rules of Court), hence, within 15 days from service of summons (Sec. 1, Rule 11, Rules of Court).

6. INTERVENTION

Nature of intervention (Bar 2011) 1. Intervention is a remedy by which a third party, not

originally impleaded in the proceedings, becomes a litigant therein to enable him, her or it to protect or preserve a right or interest which may be affected by such proceedings. It is a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. It is an act or proceeding by which a third person becomes a party in a suit pending between others for the protection of some right of interest alleged by him to be affected by such proceedings (Mactan-Cebu International Airport Authority v. Heirs of Mihoza, G.R. No. 186045, February 2, 2011; See also Office of the Ombudsman v. Samaniego, 564 SCRA 567).

2. Section 1, Rule 19 of the Rules of Court states:

SECTION 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against


both, or is so situated as to be adversely affected by a dis-tribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding.

3. Under above Rule, intervention shall be allowed when a person has

(1) a legal interest in the matter in litigation;

(2) or a legal interest in the success of any of the parties;

(3) or an interest against both parties; (4) or when he is so situated as to be adversely affected by a

distribution or disposition of property in the custody of the court or an officer thereof (Mactan- Cebu International Airport Authority v. Heirs of Mihoza, G.R. No. 186045, February 2, 2011).

In Executive Secretary v. Northeast Freight, 581 SCRA 736, 743, this Court explained intervention in this wise:

“Intervention is not a matter of absolute right but may be permitted by the court when the applicant shows facts which satisfy the requirements of the statute authorizing intervention. Under our Rules of Court, what qualifies a person to intervene is his possession of a legal interest in the matter in litigation or in the success of either of the parties, or an interest against both; or when he is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof. As regards the legal interest as qualifying factor, this Court has ruled that such interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contin-


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gent, indirect and remote, conjectural, consequential or collateral. However, notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering “whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding.” (Emphasis supplied.)

Moreover, the court must take into consideration whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s right or interest can be adequately pursued and protected in a separate proceeding (Mactan-Cebu International Airport Authority v. Heirs of Mifioza, G.R. No. 186045, February 2, 2011).

4. Intervention is never an independent proceeding but is ancillary and supplemental to an existing litigation.

It was held that its purpose is to enable a stranger to an action to become a party to protect his interest (Santiago Land Development Corporation v. Court of Appeals, 267 SCRA 79, 86).

5. An intervention cannot alter the nature of the action and the issues already joined (Castro v. David, 100 Phil. 454, 458; Bar 2011).

6. The allowance or disallowance of a motion for inter-vention rests on the sound discretion of the court after consideration of the appropriate circumstances. It is not an absolute right. The statutory rules or conditions for the right of intervention must be shown. The procedure to secure the right to intervene is to a great extent fixed by the statute or rule, and intervention can, as a rule, be secured only in accordance with the terms of the applicable provision (Mactan-Cebu International Airport Authority v. Heirs of Mifioza, G.R. No. 186045, February 2, 2011).

As put it by the Supreme Court in another case, a court’s power to allow or deny intervention is circumscribed by the


basic demand of sound juridical procedure that only a person with interest in an action or proceeding may be allowed to intervene. A court has no authority to allow a person, who has no interest in an action or proceeding, to intervene (Aftonuevo v. Intestate Estate of Jalandoni, 636 SCRA 420, 428, December 1, 2010).

This discretion, however, must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. Thus, where the substantial interest of the movant in the subject matter is undisputed, a denial of a motion to intervene is an injustice (Mago v. Court of Appeals, 303 SCRA 600, 608-609).

7. Intervention is not an absolute right as it can be secured only in accordance with the terms of the applicable statute or rule. In claiming the right to intervene, the intervenor must comply with the requirements laid down by Rule 19 of the Rules of Court (Office of the Ombudsman v. Samaniego, 564 SCRA 567, 577).

8. In general, an independent controversy cannot be injected into a suit by intervention, hence, such intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. It is not proper where there are certain facts giving the intervenor’s case an aspect peculiar to himself and differentiating it clearly from that of the original parties; the proper course is for the would-be intervenor to litigate his claim in a separate suit. Intervention is not intended to change the nature and character of the action itself, or to stop or delay the placid operation of the machinery of the trial. The remedy of intervention is not proper where it will have the effect of retarding the principal suit or delaying the trial of the action. (Mactan-Cebu International Airport Authority v. Heirs of Mifioza, G.R. No. 186045, February 2, 2011; Bar 2011).

Requisites for intervention (Bar 2000) 1. The following requisites must be complied with before a

non-party may intervene in a pending action:


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(a) There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 2, Rule 19, Rules of Court). A motion is necessary because leave of court is required before a person may be allowed to intervene (Sec. 1, Rule 19, Rules of Court).

(b) The movant must show in his motion that he has a: (1) legal interest in (a) the matter in litigation,

(b) the success of either of the parties in the action, or (c) against both parties,

(2) that the movant is so situated as to be ad-versely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof (Sec. 1, Rule 19, Rules of Court), and

(3) that the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. v. Court of Appeals, 386 SCRA 110, 116; See for further readings Acenas II v. Court of Appeals, 247 SCRA 773).

Procedure for intervention 1. The motion and the pleading shall be served upon the

original parties; 2. The intervenor shall file a motion for intervention

attaching thereto his pleading-in-intervention. The pleading to be filed depends upon the purpose of the intervention. If the purpose is to assert a claim against either or all of the original parties, the pleading shall be called a complaint-in- intervention. If the pleadings seek to unite with the defending party in resisting a claim against the latter, he shall file an answer-in-intervention (Sec. 3, Rule 19, Rules of Court);

3. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the courts (Sec. 4, Rule 19, Rules of Court).


Meaning of legal interest 1. The legal interest must be one that is actual and

material, direct and of an immediate character, not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment.

Thus, it was ruled that when the title to the property had been already declared void by final judgment, intervention will not revive or reinstate the movant’s title derived from the title declared void because there is no more legal interest in the matter in litigation. (Firestone Ceramics v. Court of Appeals, 313 SCRA 522).

2. The interest contemplated by law must be actual, substantial, material, direct and immediate, and not simply contingent or expectant. It must be of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Otherwise, if persons not parties to the action were allowed to intervene, proceedings would become unnecessarily complicated, expensive and interminable (Mactan-Cebu International Airport Authority v. Heirs of Mifioza, G.R. No. 186045, February 2, 2011).

3. In an action for foreclosure of mortgage, the alleged owners of the land sought to be foreclosed may intervene (Roxas u. Dinglasan, 28 SCRA 430).

Time for intervention The motion to intervene may be filed at any time before

rendition of judgment by the trial court (Sec. 2, Rule 19, Rules of Court; Heirs of Antonio Pael v. Court of Appeals, 325 SCRA 341, 372). Hence, intervention after trial and decision can no longer be permitted (Yau v. Manila Banking Corporation, 384 SCRA, 340, 352; Bar 1991).

F. REPLY Nature of a reply

1. A reply is a pleading, the function of which is to deny, or allege facts in denial or avoidance of new matters


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alleged by way of defense in the answer and thereby joins or makes issue as to such new matters (Sec. 10, Rule 6, Rules of Court).

2. A reply is the responsive pleading to an answer. It is not a responsive pleading to a counterclaim or a cross-claim. The proper response to a counterclaim or a cross-claim is an answer to the counterclaim or answer to the cross-claim.

Filing of reply, not mandatory 1. As a rule, the filing of a reply to the answer is not

mandatory and will not have an adverse effect on the defendant. Under Sec. 10 of Rule 6, if a party does not file such reply, all the new matters alleged in the answer are deemed controverted or denied. No admission follows from the failure to file a reply. Hence, if the answer to the complaint alleges as a defense the prescription of the action, the failure of the plaintiff to specifically deny the prescription will not amount to an admission that the debt has prescribed because the rule already denies the matter of prescription without the plaintiff making a specific denial. It is already, as the rule says, “deemed controverted” (Bar 1996; Bar 1977).

2. Contrast this with the rule that the failure to specifically deny the material allegations of the complaint shall mean the implied admission of such material allegations (Sec. 11, Rule 8, Rules of Court). Thus, the gist of the rule is: The material allegations of a complaint must be specifically denied but the allegations of new matters or material allegations of the answer need not be denied because they are deemed denied by the Rules for the plaintiff.

When filing of reply is advisable When the defense in the answer is based upon a written

instrument or document, said instrument is considered an actionable document (Sec. 7, Rule 8, Rules of Court). Hence, the plaintiff has to file a reply under oath if he desires to deny specifically the genuineness and due execution of the


actionable document and if he wants to avoid an admission of such matters. Sec. 8 of Rule 8 clearly provides:

“. . . the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts . . .” (Sec. 8, Rule 8, Rules of Court).

G. AMENDMENT OF PLEADINGS (Rule 10)

Amendment as a matter of right 1. A plaintiff has the right to amend his complaint once at

any time before a responsive pleading is served by the other party or in case of a reply to which there is no responsive pleading, at any time within ten (10) days after it is served (Sec. 2, Rule 10, Rules of Court). Thus, before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right. The defendant may also amend his answer, also as a matter of right, before a reply is served upon him.

Sec. 2 refers to an amendment made before the trial court, not to amendments before the Court of Appeals. The Court of Appeals is vested with discretion to admit or deny amended petitions filed before it (Navarro v. Vda. De Taroma, 478 SCRA 336, 344-345).

2. The right to amend a pleading as matter of right may, according to the Rules, be exercised only once (Sec. 2, Rule 10, Rules of Court). Hence, even if no responsive pleading has yet been served, if the amendment is subsequent to a previous amendment made as a matter of right, the subsequent amendment must be with leave of court.

3. Before the service of a responsive pleading, a party has the absolute right to amend his pleading, regardless of whether a new cause of action or change in theory is introduced. Since a motion to dismiss is not a responsive pleading, a plaintiff may file an amended complaint even after the original complaint was ordered dismissed, provided the order


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of dismissal is not yet final (Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416, 419).

Applicability of mandamus The court would be in error if it refuses to admit an amended

pleading when its exercise is a matter of right. This error is correctible by mandamus (Breslin v. Luzon Stevedoring, 84 Phil. 618, 626-627; Ong Peng v. Custodio, 1 SCRA 780, 784-785) because the trial court’s duty to admit an amended complaint made as a matter of right is purely ministerial (Alpine Lending Investors v. Corpuz, 508 SCRA 45, 48-49).

A motion to dismiss is not a responsive pleading (Bar 1979; 2005) 1. If a motion to dismiss is filed, an amendment to the

complaint would still be a matter of right during the pendency of the motion to dismiss. Such a motion is not a responsive pleading and its filing does not preclude the exercise of the plaintiff’s right to amend his complaint (Paeste v. Jaurigue, 94 Phil. 179, 181; Republic v. Ilao, 4 SCRA 106,112; Remington Industrial Sales v. Court of Appeals, 382 SCRA 499, 506).

In a case, the defendant, instead of filing an answer filed a motion to dismiss on the ground that the plaintiff is not a juridical person and thus, cannot be a party to the case. The plaintiff filed a motion to admit an amended complaint which was admitted by the trial court. As to whether or not plaintiff could so amend his complaint as a matter of right, the Supreme Court reiterated the rule that a party may amend his pleading once as a matter of right at any time before a responsive pleading is served. The Court declared that a motion to dismiss is not a responsive pleading and so the duty of the trial court is to admit the amended complaint. Such duty is a ministerial one because the amendment, under the circumstances, is a matter of right. In fact, the plaintiff should not have filed a motion to admit the amended complaint (Alpine Lending Investors v. Corpuz, 508 SCRA 45, 48-49).

To illustrate: PP filed an action based on an oral loan against DD who filed a motion to dismiss the complaint for


failure to state a cause of action because the allegations of the complaint do not allege that the debt is already due and demandable at the time the complaint was filed. Instead of opposing the motion, PP filed an amendment to the complaint to correct the deficiencies in its allegations. The amendment is a matter of right and hence, cannot be refused by the court.

2. Even if the motion to dismiss is granted by the court, the plaintiff may still amend his complaint as a matter of right before the dismissal becomes final as long as no answer has yet been served. In the words of the Court, the plaintiff, “may file an amended complaint even after the original complaint was ordered dismissed, provided that the order of dismissal is not yet final” (Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416, 419).

Following the above rule, an amendment to the complaint sought to be made one month after notice of the order dismissing the complaint can no longer be allowed because the order of dismissal has already become final due to the failure to perfect an appeal. As a rule, the aggrieved party must perfect his appeal within the period as provided for by the law. The rule is mandatory in character. A party’s failure to comply with the law will result in the decision becoming final and executory and, as such, can no longer be modified or reversed. Thus, it is beyond the power or jurisdiction of the court which rendered the decision or order to amend or revoke the same after the lapse of the fifteen-day reglementary period to file an appeal (National Mines and Allied Workers Union, 539 SCRA 548, 554-555).

Amendment by leave of court (Bar 1994; 1986) 1. Leave of court is required for an amendment made after

service of a responsive pleading (Sec. 3, Rule 10, Rules of Court). This rule assumes more force and effect especially when the amendment is substantial.

The plaintiff, for example, cannot, after defendant’s answer amend his complaint by changing his cause of action or adding a new one without leave of court (See also Calo


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and San Jose v. Roldan, 76 Phil. 445, 451; Buenaventura v. Buenaventura, 94 Phil. 193, 196).

2. After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly require a substantial alteration in the defenses of the adverse party. The amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, required. On the other hand, where no responsive pleading has yet been served, no defenses would be altered. The amendment of the pleading will not then require leave of court (Siasoco v. Court of Appeals, 303 SCRA 186, 195; Bar 1994).

3. The general rule on substantial amendments is embodied in Sec. 3 of Rule 10. The rule provides that “substantial amendments may be made only upon leave of court.” This general rule is however, by the very tenor of Sec. 3 of Rule 10, subject to Sec. 2 of Rule 10 which in turn governs an amendment as a matter of right. Under the latter provision, a party may amend his pleading once as a matter of right at any time before a responsive pleading is served, or in the case of a reply, at any time within ten (10) days after it is served. At this stage, a party has the absolute right to amend his pleading substantially as when he introduces a new cause of action or a change in theory. In other words, the amendment at this stage may be made as a matter of right even if the amendment is substantial.

4. The clear import of Sec. 3 of Rule 10 is that under the 1997 Rules, an amendment may now be allowed by the court even if it substantially alters the cause of action or defense. Hence, it was ruled that this rule should only be true when despite a substantial change or alteration in the cause or action or defense, the amendments sought to be made shall serve the higher interest of substantial justice, and prevent delay and equally promote the laudable objective of the rules which is to secure a “just, speedy and inexpensive disposition of every action and proceeding” (Philippine Ports Authority v. William Gothong & Aboitiz [WG&A], Inc., 542 SCRA 514, 519).


Amendment to cure a failure to state a cause of action; to conform to the evidence

1. Under Sec. 5 of Rule 10, “When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

The first part of Sec. 5 of Rule 10 applies to situations wherein evidence not within the issues raised in the pleadings is offered by the parties during the trial and is not objected to. In such a case, said issues not found in the pleadings are deemed to have been tried with the consent of the parties. That being so, the rule treats the issues as having been raised in the pleadings even if not actually raised.

Thus, where the pleadings of the parties disclose that the only issue presented before the court is merely the right of ownership over a certain property, any evidence to show right to possession may be objected to as irrelevant to the issue of the case, the concept of ownership being different from the concept of possession. An owner may not have the right of possession as when the property owned is the object of a lease contract. However, where evidence of right to possession was offered without objection, the issue of possession shall now be treated as if the same was raised in the pleadings.

2. Sec. 5 of Rule 10 also covers situations where a complaint insufficiently states the cause of action. Such insufficiency may be cured by evidence presented during the trial without objection (Bar 2004).

To illustrate: A complaint filed by a guarantor to collect a sum of money from the debtor fails to state a cause of action if the complaint does not allege that the creditor of the debtor has been paid by the guarantor even if in fact there was payment. However, if during the course of the proceedings, evidence is offered on the fact of payment without objection from the debtor, the defect in the complaint was cured by the evidence. The plaintiff may then move for the amendment of his complaint to conform to the evidence (Philippine Export


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and Foreign Loan Guarantee Corporation v. Philippine Infrastructures, Inc., 419 SCRA 6, 14-15).

Also, if a complaint failed to aver the fact that certain conditions precedent were undertaken and complied with, the failure to so allege the same may be corrected by evidence of compliance of said conditions without objection from the other party.

Amendment to conform to the evidence 1. In the event that a party presents evidence on a matter

not in issue, the adverse party has a reason to object. Common reason dictates that a party cannot breach the basic procedural rule that the trial can deal only with matters raised by the parties in their pleadings. Neither can a court render judgment on a matter not in issue because a judgment must conform to the pleadings and the theory of the action under which the case was tried. But when issues not raised in the pleadings are tried with the express or implied consent of the parties, such as when no objection is made by either, such issues not raised shall be treated as if they had been put in issue by the pleadings (Sec. 5, Rule 10, Rules of Court).

2. In a situation where issues not raised in the pleadings are tried with the express or implied consent of the parties, Sec. 5 of Rule 10 authorizes the amendment of the pleadings to conform to the evidence upon motion of a party at any time, even after judgment. This is because the issues tried shall be treated in all respects as if they had been raised in the pleadings even if not actually previously raised in the pleadings. If the parties fail to amend the pleadings, such failure will not affect the trial of these issues because such issues are deemed to have been raised in the pleadings of the parties (Sec. 5, Rule 10, Rules of Court). This provision under the Rules virtually authorizes an implied amendment of the pleadings.

Under Sec. 5 of Rule 10, “x x x If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended x x x.”


Under the same rule, the court “may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby x x x.”

3. Sec. 5 of Rule 10 envisions two situations: The first is when evidence is introduced on an issue not alleged in the pleadings and no objection was interposed by the other party. The second is when evidence is offered on an issue not raised in the pleadings but an objection was interjected. The rule in the second scenario is that the court may nevertheless admit the evidence where the objecting party fails to show that the admission of the evidence would prejudice him in his defense. The court must, however, give him a continuance to enable him to meet the new situation (Azola Farms v. Court of Appeals, 442 SCRA 133,141).

No amendment where no cause of action exists May a complaint that lacks a cause of action at the time it was

filed be cured by the accrual of a cause of action during the pendency of the case?

This was the basic issue raised in one significant case (Swagman Hotels and Travel, Inc. u. Court of Appeals, 455 SCRA 175). When the case was filed, none of the promissory notes subject of the action was due and demandable but two of the notes became due during the pendency of the action.

According to the trial court as sustained by the Court of Appeals, Sec. 5 of Rule 10 allows a complaint that does not state a cause of action to be cured by evidence presented without objection during the trial. The trial court ruled that even if the private respondent had no cause of action when he filed the complaint for a sum of money and damages because none of the three promissory notes was due yet, he could nevertheless recover on the first two promissory notes which became due during the pendency of the case in view of the introduction of evidence of their maturity during the trial.

Speaking through Chief Justice Davide, the Supreme Court ruled that such interpretation of Sec. 5, Rule 10 of the


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1997 Rules of Civil Procedure is erroneous. The Court further held: xxx

“Amendments of pleadings are allowed under Rule 10 of the 1997 Rules of Civil Procedure in order that the actual merits of a case may be determined in the most expeditious and inexpensive manner without regard to technicalities, and that all other matters included in the case may be determined in a single proceeding, thereby avoiding multiplicity of suits. Section 5 thereof applies to situations wherein evidence not within the issues raised in the pleadings is presented by the parties during the trial, and to conform to such evidence the pleadings are subsequently amended on motion of a party. Thus, a com-plaint which fails to state a cause of action may be cured by evidence presented during the trial.

“However, the curing effect under Section 5 is appli-cable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. For example, if a complaint failed to allege the fulfillment of a condition precedent upon which the cause of action depends, evidence showing that such condition had already been fulfilled when the complaint was filed may be presented during the trial, and the complaint may accordingly be amended thereafter. Thus, in Roces v. Jalandoni, this Court upheld the trial court in taking cognizance of an otherwise defective complaint which was later cured by the testimony of the plaintiff during the trial. In that case, there was in fact a cause of action and the only problem was the insufficiency of the allegations in the complaint. It thus follows that a complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Such an action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by the court upon proper motion seasonably filed by the defendant. The underlying reason for this rule is that a person should not be summoned before the public tribunals to answer for complaints which are immature” (Swagman Hotels and Travel, Inc., supra at 185-186; Underscoring supplied).


Amendment to correct a jurisdictional defect before a responsive pleading is served

1. A fair reading of jurisprudence recognizes the right of a pleader to amend his complaint before a responsive pleading is served even if its effect is to correct a jurisdictional defect. The argument that the court cannot allow such type of amendment since the court must first possess jurisdiction over the subject matter of the complaint before it can act on any amendment has no application upon an amendment that is made as matter of right.

2. In one case involving a litigation over a parcel of land, the complaint filed with the then Court of First Instance (now Regional Trial Court), was a complaint alleging forcible entry. The defendants filed a motion to dismiss alleging that the court has no jurisdiction over an action for forcible entry. Without waiting for the resolution of the motion to dismiss, the plaintiff filed an amended complaint with new allegations which transformed the original allegations of forcible entry into an action for quieting of title, an action which at that time was solely cognizable by the Court of First Instance. The trial court admitted the amended complaint, ordered the defendants to answer it and denied the motion to dismiss. The Supreme Court sustained the trial court as being consistent with the purpose and spirit of the Rules (Gumabay v. Baralin, 77 SCRA 258).

3. In another case filed before the City Court of Manila to recover unpaid rentals with a prayer that an order be issued for the surrender of the premises by the defendant to the plaintiff, the defendant filed a motion to dismiss on the ground that the amount sought to be recovered is beyond the jurisdiction of the court and that there are no allegations in the complaint showing that the defendant was unlawfully withholding the premises from the plaintiff. Before action could be taken on the motion to dismiss, the plaintiff amended the complaint to include the requisite allegations. The court denied the motion to dismiss and the opposition to the amended complaint. The court ruled that since no responsive pleading was served at


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the time of the amendment, the plaintiff had done so as a matter of course. Reiterating the rule that a motion to dismiss is not a responsive pleading, the Supreme Court sustained the trial court (Soledad v. Mamangun, 8 SCRA 110).

Amendment to correct a jurisdictional defect after a responsive pleading is served

1. An amendment of the complaint to correct a jurisdictional error cannot be validly done after a responsive pleading is served. The amendment this time would require leave of court, a matter which requires the exercise of sound judicial discretion. The exercise of this discretion requires the performance of a positive act by the court. If it grants the amendment, it would be acting on a complaint over which it has no jurisdiction. Its action would be one performed without jurisdiction.

The situation is vastly different from an amendment made as a matter of right. Here, the court does not act. The admission of the amendment is a ministerial duty of the court. It requires no positive action from the court. Since it would not be acting in this regard, it could not be deemed as acting without jurisdiction.

2. In one case, a former employee filed an action for recovery of compensation for unpaid holiday and overtime services with the then Court of Industrial Relations against his former employer. The defendant filed a motion to dismiss but was denied. The defendant-employer then filed an answer invoking as one of its affirmative defenses lack of jurisdiction of the court over the subject matter since the complaint did not allege the existence of an employer-employee relationship between the parties. The complaint alleged neither illegal dismissal nor seeks for the reinstatement of the plaintiff. Realizing, a jurisdictional error, the plaintiff filed leave to amend his complaint and to admit an amended pleading alleging illegal dismissal and a claim for reinstatement. Speaking on the is-sue of the propriety of the admission of the amendment, the Supreme Court ruled that a “complaint cannot be amended


to confer jurisdiction on the court in which it was filed, if the cause of action originally set forth was not within the court’s jurisdiction” (Campos Rueda Corporation v. Bautista, 6 SCRA 240, 244).

Note that in Campos Rueda, an answer has already been served and filed. The result would have been different had the amendment been made before the answer had been served since the original complaint was then amendable. The amendment could supersede the original pleading, as of right, without leave of court ("See also Rosario v. Carandang, 96 Phil. 845, 851; Bar 2005).

Similarly, in an action for damages filed before the then Court of First Instance (now Regional Trial Court) against a sheriff for an alleged illegal levy upon the property of the plaintiff, the latter sought to amend his complaint after an answer has been served by the defendant. The amendment was made when the plaintiff realized that the amount alleged as damages was below the jurisdiction of the court. The Supreme Court held that it was error to admit the amendment because the court must first acquire jurisdiction over the subject matter of the complaint in order to act validly on the same including its amendment (Gaspar v. Dorado, 15 SCRA 331, 334).

Effect of the amendment on the original pleading An amended pleading supersedes the original one which it

amends (Sec. 8, Rule 10, Rules of Court). It has been held however, that the original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces a new or different cause of action (Verzosa v. Court of Appeals, 299 SCRA 100).

Effect of the amendment on admissions made in the original pleading

Admissions made in the original pleadings cease to be judicial admissions (Ching v. Court of Appeals, 331 SCRA 16, 33). They are to be considered as extrajudicial admissions (Torres v. Court of Appeals, 131 SCRA 24, 35).


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“However, admissions in superseded pleadings may be received in evidence against the pleader. . .” (Sec. 8, Rule 10, Rules of Court) and in order to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence (Ching v. Court of Appeals, 331 SCRA 16, 33). The original pleadings can have no effect unless offered in evidence (Bastida v. Menzi & Co., Inc., 58 Phil. 1880).

When summons not required after complaint is amended 1. Although the original pleading is deemed superseded by

the pleading that amends it, it does not ipso facto follow that service of new summons is required. Where the defendants have already appeared before the trial court by virtue of a summons in the original complaint, the amended complaint may be served upon them without need of another summons, even if new causes of action are alleged. A court’s jurisdiction continues until the case is finally terminated once it is acquired. Conversely, when the defendants have not yet appeared in court, new summons on the amended complaint must be served on them. It is not the change of a cause of action that gives rise to the need to serve another summons for the amended complaint but rather the acquisition of jurisdiction over the persons of the defendants. If the trial court has not yet acquired jurisdiction over them, a new summons for the amended complaint is required (Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 57-58).

2. However, where a new defendant is impleaded, summons must be served upon him so that the court may acquire jurisdiction over his person because logically, the new defendant cannot be deemed to have already appeared by virtue of summons under the original complaint in which he was not yet a party (Bar 1999).

Supplemental pleadings 1. A supplemental pleading is one which sets forth

transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented (Sec. 6, Rule 10, Rules of Court).


2. The filing of supplemental pleadings requires leave of court. The court may allow the pleading only upon such terms as are just. This leave is sought by the filing of a motion with notice to all parties (Sec. 6, Rule 10, Rules of Court).

Cause of action in supplemental pleadings 1. When the cause of action in the supplemental complaint

is different from the cause of action mentioned in the original complaint, the court should not admit the supplemental complaint (Asset Privatization Trust v. Court of Appeals, 324 SCRA 533, 546).

2. As its very name denotes, a supplemental pleading only serves to bolster or add something to the primary pleading. A supplemental pleading exists side by side with the original. It does not replace that which it supplements. Moreover, a supplemental pleading assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action. It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint (Chan v. Chan, 569 SCRA 106).

Answer to a supplemental pleading; not mandatory Should an answer to a supplemental complaint be filed? This

question was answered in a recent case. Declared the Supreme Court:

x x x “Sec. 7. Answer to supplemental complaint. - A

supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.

As can be gleaned from the above provision, the filing of an answer to the supplemental pleading is not mandatory because of the use of the word “may.” This is


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bolstered by the express provision of the Rules that the answer to the original pleading shall serve as the answer to the supplemental pleading if no new or supplemental answer is filed. Thus, the Court cannot declare the re-spondents in default simply because the latter opted not to file their answer to the supplemental petition.

As its very name denotes, a supplemental pleading only serves to supplement or add something to the pri-mary pleading. A supplement exists side by side with the original. It does not replace that which it supplements. It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint. More importantly, a supplemental pleading assumes that the original pleading is to stand and that the issues joined with the original pleading remained as issues to be tried in the action” (Chan v. Chan, 569 SCRA 106, 116-117).

II. MOTIONS IN CIVIL CASES

Definition of a motion A motion is an application for relief other than by a pleading


Form of motions 1. All motions must be in writing. Excepted from this

written requirement are those (a) motions made in open court, and (b) motions made in the course of a hearing or trial (Sec. 2, Rule 15, Rules of Court).

2. The rules that apply to pleadings shall also apply to written motions with respect to caption, designation, signature, and other matters of form (Sec. 10, Rule 15, Rules of Court).

Contents of a motion Motions are to contain the following: (a) a statement of the

relief sought to be obtained; (b) the grounds upon which the motion is based; and (c) the supporting affidavits and other


papers. The last requirement applies only when so mandated by the Rules or when necessary to prove facts stated in the motion (Sec. 3, Rule 15, Rules of Court).

Hearing of the motion; litigated and ex parte motions 1. As a rule, every written motion shall be set for hearing by

the applicant except for motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15, Rules of Court). This provision therefore, establishes the general rule that every written motion is deemed a litigated motion, i.e., one which requires the parties to be heard before a ruling on the motion is made by the court.

2. An ex parte motion, on the contrary, is one which does not require that the parties be heard and which the court may act upon without prejudicing the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 4, Rule 15, Rules of Court). An example of an ex parte motion is that one filed by the plaintiff pursuant to Sec. 1 of Rule 18 in which he moves promptly that the case be set for pre-trial. On the other hand, a motion to dismiss (Rule 16) and a motion for summary judgment (Rule 35), are litigated motions.

3. A motion for extension of time is not a litigated motion where notice to the adverse party is necessary to afford the latter an opportunity to resist the application, but an ex parte motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties. It has been said that “ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of emergency; and an exception to a rule requiring notice is sometimes made where notice or the resulting delay might tend to defeat the objective of the motion” (Sarmiento v. Zaratan, 514 SCRA 246, 260-261).

Notice of the motion 1. The written motion which is required to be heard and the

notice of the hearing thereof shall be served in such


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a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice (Sec. 4, Rule 15, Rules of Court).

2. The notice of hearing shall be addressed to all the parties concerned (Sec. 5, Rule 15, Rules of Court).

3. The notice of hearing shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion (Sec. 5, Rule 15, Rules of Court).

Proof of service Proof of service is required. No written motion set for hearing

shall be acted upon by the court without proof of service thereof (Sec. 6, Rule 15, Rules of Court).

Motion day All hearings of motions shall be scheduled for hearing on

Friday afternoons, or if Friday is a non-working holiday, in the afternoon of the next working day. This rule does not apply to motions requiring immediate attention (Sec. 7, Rule 15, Rules of Court).

Effect of failure to set the motion for hearing, to include a notice of hearing and to serve the motion (Secs. 4, 5, 6 of Rule 15)

1. The Court has consistently held that a motion which does not meet the requirements of Secs. 4 and 5 of Rule 15 of the Rules of Court on hearing and notice of the hearing, is a worthless piece of paper which the clerk of court has no right to receive and which the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective (Vette Industrial Sales Co., Inc. v. Cheng, 509 SCRA 532, 545).

2. The well-settled rule is that a motion which fails to comply with the requirements under Secs. 4, 5 and 6 of Rule


15, is a mere scrap of paper (Neri v. De la Pena, 457 SCRA 538, 546). It is pro forma presenting no question which the court could decide (Boiser v. Aguirre, Jr., 458 SCRA 430, 438). If filed, such motion is not entitled to judicial cognizance and does not stop the running of the period for filing the requisite pleading (Cruz v. Court of Appeals, 388 SCRA 72,80). A motion which does not comply with the rules on motion is considered pro forma and thus, will be treated as one filed merely to delay the proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87, 93).

Motion for leave to file a motion A motion for leave to file a motion shall be accompanied by the

motion sought to be admitted. The same rule applies to pleadings (Sec. 9, Rule 15, Rules of Court).

The omnibus motion rule (Bar 2010; 2011) 1. The rule is a procedural principle which requires that

every motion that attacks a pleading, judgment, order or proceeding shall include all grounds then available, and all objections not so included shall be deemed waived (Sec. 8, Rule 15, Rules of Court). Since the rule is subject to the provisions of Sec. 1 of Rule 9, the objections mentioned therein are not deemed waived even if not included in the motion. These objections are: (a) that the court has no jurisdiction over the subject matter; (b) that there is another action pending between the same parties for the same cause (litis pendentia); (c) that the action is barred by a prior judgment (res judicata)’, and (d) that the action is barred by the statute of limitations or prescription (Sec. 1, 2nd sentence, Rule 9, Rules of Court).

2. A motion to dismiss is a typical example of a motion subject to the omnibus motion rule, since a motion to dismiss attacks a complaint which is a pleading. Following the omnibus motion rule, if a motion to dismiss is filed, then the motion must invoke all objections which are available at the time of the filing of said motion. If the objection which is available at the time is not included in the motion, that ground is deemed


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waived. It can no longer be invoked as an affirmative defense in the answer which the movant may file following the denial of his motion to dismiss.

To illustrate: In a case filed with the RTC, the defendant filed a motion to dismiss invoking the following as objections: (a) the complaint’s failure to state a cause of action, (b) lack of jurisdiction over the person of the defendant, and (c) that the contract violates the statute of frauds. Two objections available at the time the motion is filed, namely, improper venue and prescription were not included in the motion. The motion to dismiss was denied. May the defendant in his answer, filed after the denial of his motion to dismiss, invoke the affirmative defenses of improper venue and prescription? Answer: Improper venue is deemed waived. It was available as a defense at the time the motion was filed and should have been invoked. Failure to so include the same in the motion is to be construed as waiver of the objection. Prescription, on the other hand, is not waived and can still be interposed as an affirmative defense in the answer. It is a defense that is not deemed waived under the explicit provisions of Sec. 1 of Rule 9.

Prohibited motions under the 1991 Revised Rules on Summary Procedure

The following motions shall not be allowed (Sec. 19,1991 Revised Rules on Summary Procedure):

a. Motion to dismiss the complaint; Motion to quash a criminal complaint or information; Exception: If the ground is lack of jurisdiction over the subject matter or the failure to comply with the rule requiring referral to the Lupon for conciliation.

b. Motion for a bill of particulars; c. Motion for new trial; d. Motion for reconsideration of a judgment; e. Motion for reopening of trial; f. Motion for extension of time to file pleadings, affidavits or

any other paper;


g. Motion to declare the defendant in default; and h. Dilatory motions for postponement (Sec. 19, 1991 Revised

Rules on Summary Procedure).

Prohibited motions in the Rules of Amparo and Habeas Data

The following motions are prohibited: a. Motion to dismiss; b. Motion for extension of time to file opposition, affidavit,

position paper and other pleadings; c. Dilatory motion for postponement;

d. Motion for a bill of particulars;

e. Motion to declare respondent in default; and f. Motion for reconsideration of interlocutory orders or

interim relief orders (Sec. 11, The Rules on the Writ of Amparo; Sec. 13, The Rules on the Writ of Habeas Data).

Prohibited motions under the Rule of Procedure for Small Claims Cases as amended

The following motions shall not be allowed in the case covered by the Rules of Procedure for Small Claims Cases:

a. Motion to dismiss the complaint;

b. Motion for a bill of particulars;

c. Motion for new trial;

d. Motion for reconsideration of a judgment;

e. Motion for reopening of trial; f. Motion for extension of time to file pleadings, affidavits or

any other paper; g. Motion to declare the defendant in default; and h. Dilatory motions for postponements (Sec. 14, Rule of

Procedure for Small Claims Cases).


373

Prohibited motions under the Rule of Procedure for Environ-mental Cases

a. Motion to .dismiss the complaint; b. Motion for a bill of particulars; c. Motion for extension of time to file pleadings, except to

file answer, the extension not to exceed 15 days; d. Motion to declare the defendant in default (Sec. 2, Rule 2,

Rules of Procedure for Environmental Cases).

— oOo —

Chapter V

SUMMONS

Nature of summons (Rule 14) 1. Summons is the writ by which the defendant is notified

of the action brought against him (Republic of the Philippines v. Domingo, G.R. No. 175299, September 14,2011; Cano-Gutierrez v. Gutierrez, 341 SCRA 670, 675; Guanzon v. Arradaza, 510 SCRA 309, 312).

2. Fundamentally, it is a notice to the defendant that a particular person named therein has commenced an action against him in a particular court. An important part of that notice according to the Rules (Sec. 2, Rule 14, Rules of Court), is a direction that the defendant answer the complaint within the period fixed by the Rules and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for.

Issuance of summons; not discretionary The issuance of summons is not discretionary on the part of

the court or the clerk of court but is a mandatory requirement. The provisions of Sec. 1 of Rule 14 direct that the clerk of court shall issue the corresponding summons to the defendant upon (a) the filing of the complaint, and (b) the payment of the requisite legal fees. The use of the term “shall” leaves no doubt as to the mandatory character of the issuance of summons.

Effect of knowledge of the filing of the action 1. Knowledge by the defendant or by its agents of an action

filed against it does not dispense with the need for summons. Summons must still be issued and served.

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2. In an early case, the plaintiff, Polaris Marketing Corporation, filed an action against the defendant, House of Fine Furnitures, Inc., for the recovery of the price of certain foam products. The counsel for the defendant was the president of Trimica, Inc., another entity engaged in the manufacture of furniture. The evidence presented during the trial de novo of the case disclosed that the foam products were actually delivered to Trimica, Inc. and not to the defendant, House of Fine Furnitures. In view of the evidence, the judge ordered the plaintiff to amend its complaint to implead Trimica, Inc. as defendant. After the admission of the amended complaint, the judge rendered a decision absolving the defendant, House of Fine Furnitures, Inc. and ordering Trimica, Inc. to pay the claim of the plaintiff, Polaris Marketing Corporation. A subsequent motion to set aside the judgment on the ground that the judgment was void for lack of due process was denied by the judge. The court’s theory was that Trimica, Inc. was not denied due process because its president had actually appeared in the action as counsel for House of Fine Furnitures, Inc., and had in fact also admitted in court that it was actually Trimica, Inc. which received the foam products.

The Supreme Court, struck down the theory of the trial court, holding, thus:

x x x “We are of the opinion that the judgment against

Trimica, Inc. was void for lack of jurisdiction and lack of due process and that the judgment could be attacked directly although it had allegedly become executory (2 Moran’s Comments on the Rules of Court, 1970 Ed. 200, 245-6; Rueda v. Juan, 106 Phil. 1069, 1972; Banco Es- panol-Filipino v. Palanca, 37 Phil. 921, 949; Anuran v. Aquino, 38 Phil. 29).

No jurisdiction was acquired over Trimica. Tnc. be-cause it was never summoned. The appearance in court of its president, Capistrano, was in the capacity of counsel for Fine Furnitures and not as representative or counsel of Trimica, Inc. Hence, such appearance cannot be construed as a voluntary submission of Trimica, Inc. to


the court’s jurisdiction. (Johnlo Trading Co. v. Flores, 88 Phil. 741, 743).

The lower court, in its order admitting the amended complaint, should have ordered that the new defendant, Trimica Inc., be summoned in order that jurisdiction could be acquired over it and so that it could answer the amended complaint and have a chance to be heard. Where the defendant had not been summoned, the court did not acquire jurisdiction over his person. The judgment against him is void. (Echevarria v. Parsons Hardware Co., 51 Phil. 980; Reyes v. Paz and Judge of First Instance, 60 Phil. 440; Caneda v. Court of Appeals, 62 O.G. 1179, 5 SCRA 1131).

The fact that Capistrano, the president of Trimica, Inc., appeared in court as counsel for Fine Furnitures and was aware of the joinder of Trimica, Inc. as a defendant, was not a valid excuse for dispensing with the rudimentary requirements that Trimica, Inc. should be summoned, that a copy of the amended complaint should be served upon it in due course, that it should be afforded an opportunity to file an answer with defenses and that a trial should be held to determine its liability.”

Purpose of summons in actions in personam 1. Since it is a writ by which the defendant is notified of the

action brought against him, the most basic purpose of summons, whatever be the nature of the action involved, is to satisfy the requirements of procedural due process.

However, in an action in personam, the purpose of summons is not only to comply with due process but also to acquire jurisdiction over the person of the defendant. It needs to be noted at this point that the mere filing of the complaint does not enable the court to acquire jurisdiction over the person of the defendant. By the filing of the complaint and the payment of the required filing and docket fees, the court acquires jurisdiction only over the person of the plaintiff, not over the person of the defendant.

2. That the acquisition of jurisdiction over the person of the defendant is a purpose of summons in an action in

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personam, is not difficult to appreciate. Jurisprudence like Gomez v. Court of Appeals, 425 SCRA 98, 105, considers this action as one instituted against a person on the basis of his personal liability as differentiated from an action in rem which is brought against the thing itself, instead of against the person. Sheer logic suggests that the court would be devoid of authority to hold one personally liable for the relief prayed for by the plaintiff without first vesting upon said court jurisdiction over the person of the defendant.

For instance, in an action for damages based on breach of contract, an action in personam, the purpose of summons is not only to notify the defendant. It is also to acquire jurisdiction over his person.

It has been held that in actions for damages based on breach of contract, service of summons upon the defendant is necessary in order that a court may acquire jurisdiction over his person and any judgment without such service in the absence of a valid waiver is null and void (Umandap v. Sabio, Jr., 339 SCRA 243-247). Service of such writ is the means by which the court acquires jurisdiction over his person and is acquired through coercive process, generally by the service of summons issued by the court, or through the defendant’s voluntary appearance or submission to the court (Republic of the Philippines v. Domingo, G.R. No. 175299, September 14, 2011).

3. In this regard, Velayo-Fong v. Velayo, 510 SCRA 320, 331 is illuminating:

x x x “Where the action is in personam, that is, one

brought against a person on the basis of her personal li-ability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case x x x.”

Strict compliance rule Jurisprudence has consistently emphasized the rule that the

modes of service must be strictly followed in order


that the court may acquire jurisdiction over the person of the defendant (Umandap v. Sabio, Jr., 339 SCRA 243, 248; Gan Hock v. Court of Appeals, 197 SCRA 223, 232).

Purpose of summons in actions in rem and quasi in rem 1. In actions in rem and quasi in rem, the court is not

concerned with the acquisition of jurisdiction over the person of the defendant. In these actions, it is the acquisition by the court of jurisdiction over the res which principally matters.

2. Recall that jurisdiction over the res is acquired either “(a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. The service of summons or notice to the defendant is not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements” (Alba v. Court of Appeals, 465 SCRA 495, 505-506).

3. Thus, it has been clearly declared that in an action in rem or quasi in rem, jurisdiction over the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. This does not, however, mean that the service of summons may be dispensed with. The Court adds that summons must still be served upon the defendant in order to satisfy the due process requirements (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 554; Gomez v. Court of Appeals, 420 SCRA 98, 104; Biaco v. Philippine Countryside Rural Bank, 515 SCRA 106, 115-116; Suggested reading: PCI Bank v. Alejandro, 533 SCRA 738).

Voluntary appearance by the defendant 1. It has been previously remarked that a basic rule to

remember is that the acquisition of jurisdiction over the person of the defendant is required in an action in personam. But how is this jurisdiction acquired?

2. It has been consistently ruled that jurisdiction over the person of the defendant is acquired through coercive pro

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cess, generally by the service of summons issued by the court, or through the defendant’s voluntary appearance or submission to the court (Republic of the Philippines v. Domingo, G.R. No. 175299, September 14, 2011)

Stated otherwise, without a valid service of summons, the court cannot acquire jurisdiction over the defendant, unless the defendant voluntarily submits himself to the jurisdiction of the court. When the defendant does not voluntarily submit to the court’s jurisdiction or there is no valid service of summons, any judgment of the court over the defendant will be null and void for lack of jurisdiction over the defendant (Manotoc v. Court of Appeals, 499 SCRA 21,33; Bar 1999).

3. An absence of service of summons or even an invalid service of summons will not prevent the court from acquiring jurisdiction over the defendant as long as he performs acts that could be construed as a voluntary appearance (Please refer to discussion in Chapter II on Jurisdiction). This is because under Sec. 20 of Rule 14, the defendant’s voluntary appearance in the action shall be equivalent to service of summons.

The applicable provision states:

“Sec. 20. Voluntary appearance. — The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.”

4. There is likewise a need to emphasize that under existing rules, a defending party may file a motion to dismiss a claim for lack of jurisdiction over his person and add to such ground other grounds for dismissal. The defendant may for example, include failure to state a cause of action, prescription, improper venue and other authorized defenses and objections under the Rules, aside from lack of jurisdiction over the person of the defendant. The addition of such grounds aside from lack of jurisdiction over the person of the defendant shall not be considered a voluntary appearance under Sec. 20 of Rule 14.


5. Because of the rule in Sec. 20 of Rule 14, even assuming that the service of summons was defective, the trial court acquired jurisdiction over the person of the defendant by his own voluntary appearance in the action against him when he filed the “Omnibus Motion for Reconsideration and to Admit Attached Answer.” This was equivalent to service of summons and vested the trial court with jurisdiction over the person of the defendant (Santos v. PNOC Exploration Corporation, 566 SCRA 272, 280).

Who issues the summons The clerk of court issues the summons (Sec. 1, Rule 14, Rules

of Court) who shall sign the same under seal (Sec. 2, Rule 14, Rules of Court).

When summons is issued Summons shall be issued upon the filing of the complaint and

the payment of the requisite legal fees (Sec. 1, Rule 14, Rules of Court).

To whom summons is directed The summons is a writ that is directed to the defendant, not to

the plaintiff (Sec. 2, Rule 14, Rules of Court).

Who serves summons The summons may be served by the sheriff, his deputy, or

other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons (Sec. 3, Rule 14, Rules of Court).

Contents of the summons 1. The summons shall contain the following matters:

(a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by the Rules; and (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief prayed for (Sec. 2, Rule 14, Rules of Court).

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2. A copy of the complaint (including a copy of an order of appointment of a guardian ad litem, if necessary) shall be attached to the original and each copy of the summons (Sec. 2, Rule 14, Rules of Court).

Return and proof of service 1. When the service has been completed, the server shall,

within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service (Sec. 4, Rule 14, Rules of Court).

2. After the completion of the service, a proof of service is required to be filed by the server of the summons. The proof of service of summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec. 18, Rule 14, Rules of Court).

Uniformity of the rules on summons The rules on summons apply with equal force in actions before

the Regional Trial Courts, the Municipal Trial Courts, the Municipal Circuit Trial Courts and the Metropolitan Trial Courts (Bar 1989). This is because the procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure (Sec. 1, Rule 5, Rules of Court).

Service of summons without copy of the complaint A defendant is still bound to comply with the summons even if

service was made without attaching a copy of the complaint. In a very early case, Pagalaran v. Bal-latan, 13 Phil. 135, 140,

the defendant, a certain Maria Bidayanes, was personally


served with summons. She was notified of the order to appear before the court and to file her answer and was given a duplicate copy of the order, the receipt of which she acknowledged. The summons, however, was not accompanied by a copy of the complaint. The defendant did not appear and file her answer as ordered. The trial court then issued an order declaring her in default. A principal issue raised in the Supreme Court was whether or not the proceedings in the trial court should be annulled on the ground that the defendant had never been summoned pursuant to the Rules because she was not served a copy of the complaint. In sustaining the lower court’s refusal to revoke its decision, the Supreme Court, while admitting that the service of summons was defective, treated the defect as having been waived by the defendant’s failure to seasonably challenge the trial court’s jurisdiction over her person.

Service upon an entity without a juridical personality 1. Under Sec. 15 of Rule 3, when two or more persons not

organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known (Sec. 15, Rule 3, Rules of Court). Thus, if A, B and C enter into a transaction under the name, ABC Corporation, an entity which has actually no juridical personality, A, B, and C may be sued under the name, ABC Corporation.

How then may summons be served upon the non-existent corporation or upon those who compose the “corporation”?

2. Under Sec. 8 of Rule 14, service may be effected upon all the defendants by serving summons upon (a) any one of them, or (b) upon the person in charge of the office or of the place of business maintained in such name. This service shall not, however, bind individually any person whose connection with the entity, upon due notice, had been severed before the action was brought. (Bar 2011)

Service upon a prisoner When the defendant is a prisoner confined in a jail or

institution, service shall be effected upon him (the prisoner) by

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the officer having the management of such jail or institution. For this purpose, the jail manager is deemed deputized as a special sheriff (Sec. 9, Rule 14, Rules of Court).

Service upon a minor and an incompetent When the defendant is a minor, insane or otherwise an

incompetent, service shall be made (a) upon him personally and (b) on his legal guardian if he has one, or if none, upon his guardian ad litem. The appointment of the guardian ad litem shall be applied for by the plaintiff. If the defendant is a minor, service may be made also upon his father or mother (Sec. 10, Rule 14, Rules of Court).

Service upon a private domestic juridical entity 1. When the defendant is a corporation, partnership or

association organized under the laws of the Philippines with a juridical personality, service may be made upon the following persons: (a) president, (b) managing partner, (c) general manager, (d) corporate secretary, (e) treasurer, or (f) in-house counsel (Sec. 11, Rule 14, Rules of Court).

This enumeration has been held to be limited to the persons enumerated and summons cannot be served upon any other person. The case of E.B. Villarosa & Partner Ltd. v. Benito, 312 SCRA 65, 73 clearly considers the enumeration as “restricted, limited and exclusive.”

2. In construing the provisions of this rule before its amendment took effect on July 1, 1997, the Court employed the principle of substantial compliance.

For instance, in Summit Trading and Development Cor-poration v. Avendano, 135 SCRA 397, 400, the Court upheld the validity of service made upon the secretary of the corporate president.

The same liberal construction of the rule on summons was made in a case where service was made upon a mere clerk of the corporation (G & G Trading Corporation v. Court of Appeals, 158 SCRA 466, 469; Rebollido v. Court of Appeals, 170 SCRA 800, 809-810).


It was likewise held that service upon the administrator of the corporate property and recognized as such by the workers therein is a substantial compliance of the rule (Pison- Arceo Agricultural and Development Corporation v. National Labor Relations Commission, 279 SCRA 312, 322).

Service of summons on an operations manager was held valid (R. Transport Corporation v. Court of Appeals, 241 SCRA 77, 83).

Service of summons on a bookkeeper was also upheld (Pabon v. NLRC, 296 SCRA 7,14).

Other previous rulings allowed service through a secretary of the President (Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 55-56), or the cashier (Talsan v. Baliwag Transit, Inc., 310 SCRA 156,163-164).

The case of Millenium Industrial Corporation v. Tan, 326 SCRA 563, 569-571, although promulgated after the effectivity of the amendments to the Rules was decided upon facts occurring before the effectivity of the 1997 amendments, and hence, the ruling therein was guided by the rule of substantial compliance. In this case, service of summons upon a “draftsman” was upheld because the defendant corporation actually received the summons from the employee served.

The much later case of Aboitiz International Forwarders, Inc. v. Court of Appeals, 488 SCRA 492, 507-509 which upheld service of summons upon a customer service representative of defendant corporation and deemed an “agent” for purposes of summons, was decided in accordance with facts that transpired prior to the amendments which took effect on July 1, 1997. Hence, the ruling in this case did not apply the strict new rule on summons under Sec. 11, of Rule 14 and was decided in accordance with the old rule on the matter.

3. The policy of liberal interpretation of the old rule (then Sec. 13 of Rule 14) was largely due to the presence of the word “agent” in the provision as one of those upon whom summons could be served. This term was broad enough to allow the application of the rule on substantial compliance.

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Service upon an agent, however, is no longer provided for under the present rules on summons as now embodied in Sec. 11 of Rule 14.

4. Finally in 1999, came the first case which interpreted the new provisions on summons under Sec. 11 of Rule 14.

In E.B. Villarosa & Partner Ltd. v. Benito, 312 SCRA 65,73-74, the Supreme Court agreed with the petitioner that the enumeration of persons to whom summons may be served is “restricted, limited, and exclusive” following the rule on statutory construction expressio unius est exclusio alterius and that if the Rules of Court Revision Committee intended to liberalize the rule on service of summons, it could have easily done so by clear and concise language. It further ruled that “Notably, under the new Rules, service of summons upon an agent of the corporation is no longer authorized.” Hence, the Court, in this case, ruled against the validity of service of summons made on a mere branch manager of the defendant corporation.

In so doing, Villarosa stressed: “The designation of persons or officers who are

authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states “general manager” instead of only “manager”; “corporate secretary” instead of “secretary”; and “treasurer” instead of “cashier.” The phrase “agent, or any of its directors” is conspicuously deleted in the new rule.”

5. Significantly, the rule requiring a strict compliance with the rules on summons is not a novel policy. Even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules had been enjoined.

In the case of Delta Motor Sales Corporation v. Mangosing, 70 SCRA 598, 602, the Court held:

“A strict compliance with the mode of service is nec-essary to confer jurisdiction of the court over a corpora


tion. The officer upon whom service is made must be one who is named in the statute; otherwise the service is in-sufficient. . .

The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‘to bring home to the corporation notice of the filing of the action. . . ,

The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. . . (Underscoring supplied)

6. Villarosa was invoked and confirmed in the subsequent case of Mason v. Court of Appeals, 413 SCRA 303, 310- 311, when the Court ruled as invalid the service of summons upon a secretary of the corporate president. Here, the Court ruled:

“The question of whether the substantial compliance rule is still applicable under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been settled in Villarosa which applies squarely to the instant case. In the said case, petitioner E.B. Villarosa & Partner Co. Ltd. (hereafter Villarosa) with principal office address at 102 Juan Luna St., Davao City and with branches at 2492 Bay View Drive, Tambo, Paranaque, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City, entered into a sale with development agreement with private respondent Imperial Development Corporation. As Villarosa failed to comply with its contractual obligation, private respondent initiated a suit for breach of contract and damages at the Regional Trial Court of Makati. Summons, together with the complaint, was served upon Villarosa through its branch manager at Kolambog, Lapasan, Cagayan de Oro City. Villarosa filed a Special Appearance with Motion to Dismiss on the ground of improper service of summons and lack of jurisdiction. The trial court denied the motion and ruled that there was substantial compliance with the rule, thus, it acquired jurisdiction over Villarosa. The lat

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ter questioned the denial before us in its petition for cer-tiorari. We decided in Villarosa’s favor and declared the trial court without jurisdiction to take cognizance of the case. We held that there was no valid service of summons on Villarosa as service was made through a person not included in the enumeration in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, which revised Section 13, Rule 14 of the 1964 Rules of Court. We discarded the trial court’s basis for denying the motion to dismiss, namely, private respondent’s substantial compliance with the rule on service of summons, and fully agreed with petitioner’s assertions that the enumeration under the new rule is re-stricted, limited and exclusive, following the rule in statu-tory construction that expressio unius est exclusio alterius. Had the Rules of Court Revision Committee intended to liberalize the rule on service of summons, we said, it could have easily done so by clear and concise language. Absent a manifest intent to liberalize the rule, we stressed strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil Procedure.

“Neither can herein petitioners invoke our ruling in Millenium to support their position for said case is not on all fours with the instant case. We must stress that Mil-lenium was decided when the 1964 Rules of Court were still in force and effect, unlike the instant case which falls under the new rule. Hence, the cases cited by petitioners where we upheld the doctrine of substantial compliance must be deemed overturned by Villarosa, which is the later case” (Underscoring supplied).

7. In the more recent case of Paramount Insurance Corp. v. A.C. Ordonez Corporation, 561 SCRA 327, 333, the Court reiterated the rule that Sec. 11 sets out an exclusive enumeration of the officers who can receive summons on behalf of a corporation and that service of summons to someone other than those enumerated is not valid. The Court further emphasized that the argument of substantial compliance is no longer compelling. Ruled the Court:

“... We have ruled that the new rule... is restricted, limited and exclusive ___ Had the Rules of Court Revision Committee intended to liberalize the rule on service of


summons, it could have done so in clear and concise language. Absent a manifest intention to liberalize the rule, strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil Procedure is required.”

Service upon a foreign private juridical entity 1. Service upon a foreign private juridical entity which has

transacted business in the Philippines may be made on (a) its resident agent designated in accordance with law for that purpose, or, if there be no such agent, (b) on the government official designated by law to that effect, or (c) on any of its officers or agents within the Philippines (Sec. 12, Rule 14, Rules of Court). Note: Please see Appendix “A” for amendments to the rule.

2. It has been held that when a foreign corporation has designated a person to receive summons on its behalf pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious (H.B. Zachry Company International v. Court of Appeals, 232 SCRA 329, 346).

Service upon a public corporation 1. When the defendant is the Republic of the Philippines,

service may be effected on the Solicitor General (Section 13, Rule 14, Rules of Court).

2. When the defendant is a province, city or municipality, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct (Sec. 13, Rule 14, Rules of Court).

Service upon an unincorporated government agency Jurisprudence instructs that when a suit is directed against

an unincorporated government agency, which, because it is unincorporated, possesses no juridical personality of its own, the suit is against the agency’s principal, i.e., the State. It is clear under the Rules that where the defendant is the Republic of the Philippines, service of summons must be made on the Solicitor General. Thus, where the complaint for specific

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performance with damages was filed against DPWH Region III which is a mere agent of the Republic, the summons in this case should have been served on the OSG (Republic of the Philippines v. Domingo, G.R. No. 175299, September 14, 2011).

A. Service in person on defendant (formerly personal service of summons)

1. Service in person on defendant, which is the preferred mode of service of summons under the Rules, is embodied in Sec. 6 of Rule 14 of the Rules of Court which provides:

SEC. 6. Service in person on defendant. — Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

Note that under the present rule, Sec. 6 of Rule 14 refers to the mode of service therein as “Service in person on defendant,” not ‘personal service.’ The latter is a mode by which pleadings, motions, notices, orders, judgments and other papers are served under Sec. 6 of Rule 13 of the Rules of Court. In short, ‘personal service’ is primarily a concept actually found in Rule 13 and not Rule 14. The terms are often used interchangeably because the mode of service in Sec. 6 of Rule 14 used to be referred to in Sec. 7 of Rule 14 of the 1964 Rules as ‘personal service of summons.’

2. Service in person is effected by handing a copy of the summons to the defendant in person. If he refuses to receive and sign for it, the remedy of the server is to tender the summons to the defendant (Sec. 6, Rule 14, Rules of Court).

3. If the defendant refuses the service, the sheriff is not supposed to resort to substituted service immediately. The sheriff or the appropriate officer is required by the Rules to “tender” the summons to the defendant. ‘Tender of summons’ is not a separate mode of service. It is a part of service in person and applies when the defendant refuses to receive and sign for the summons.


Service of summons upon the defendant is essential for the court to acquire jurisdiction over his person. The modes of service should be strictly followed in order that the court may acquire jurisdiction over the person. Thus, it is only when a defendant cannot be served personally “within a reasonable time” that substituted service may be made (Miranda v. Court of Appeals, 326 SCRA 278, 282-283).

4. Thus, it was held that the impossibility of prompt, personal service should be shown by stating in the proof of service that efforts were made to serve the defendant personally and that said efforts failed, hence, the resort to substituted service. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is necessary because substituted service is in derogation of the usual method of service. It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute. Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective (Hamilton v. Levy, 344 SCRA 821, 829).

5. Only if service in person cannot be made promptly can the process server resort to substituted service. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business of the defendant. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective (Jose v. Boyon, 414 SCRA 216, 222; Miranda v. Court of Appeals, 326 SCRA 278, 283).

For instance in Miranda v. Court of Appeals, 326 SCRA 278, the Court found that even the briefest perusal of the

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sheriffs return clearly showed no reason why personal service could not be made. The Court reiterated the rule that the impossibility of prompt, personal service should be shov n by stating in the proof of service that efforts were made to find the defendant personally and that said efforts failed, hence the resort to substituted service. Since no such explanation was made, there was a failure to faithfully, strictly, and fully comply with the requirements of substituted service. This rendered said service ineffective.

6. Failure to find the defendants in their residence on the first and only attempt to effect service in person, does not justify the availment of substituted service. There was no attempt by the sheriff to faithfully comply with the requirements of service in person on the defendant. Worse, substituted service was made through a girl who was only 11 to 12 years old (Laus v. Court of Appeals, 219 SCRA 688).

7. In a suit in personam, against a resident of the Phil-ippines temporarily absent from the country, the defendant may be served by substituted service because a man temporarily out of the country leaves a definite place of residence or a dwelling where he is bound to return. He also leaves his affairs to someone who protects his interests and communicates with him on matters affecting his affairs or business (Montal- ban v. Maximo, 22 SCRA 1070, 1078-1079; Valmonte v. Court of Appeals, 252 SCRA 92, 99-100).

If the defendant is out of the country, he cannot be expectedly served within a reasonable time. The fact that “for justifiable causes, the defendant cannot be served within a reasonable time,” constitutes the operative fact that triggers the application of substituted service. This mode of service in the case of a resident temporarily absent from the cot itry is, of course, in addition to the summons by publication authorized by Sec. 16 of Rule 14 in relation to Sec. 15 of Rule 14 of the Rules of Court.

8. An ineffective substituted service has certain adverse effects. First, the period to file a motion to dismiss for lack of jurisdiction over the defendant’s person does not commence


to run since the court has no jurisdiction to adjudicate the controversy as to him, unless he voluntarily submits to the jurisdiction of the court (Laus v. Court of Appeals, 219 SCRA 688, 703). Second, the trial court does not acquire jurisdiction over the person of the defendant (Laus v. Court of Appeals, 219 SCRA 688, 701; Litonjua v. Court of Appeals, 80 SCRA 246, 251).

B. Substituted service of summons (Bar 2004; 2006)

1. Only if service in person cannot be made promptly can the process server resort to substituted service (Jose v. Boyon, 414 SCRA 216,222). This sums up the rule as to when substituted service shall apply.

The more recent case of Afdal v. Carlos, 636 SCRA 389, 397-398, December 1,2010, echoes the rules on the application of substituted service, thus:

x x x “Service of summons upon the defendant shall be by

personal service first and only when the defendant cannot be promptly served in person will substituted service be availed of. x x x

We have long held that the impossibility of personal service justifying availment of substituted service should be explained in the proof of service; why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; other-wise, the substituted service cannot be upheld.

In this case, the indorsements failed to state that prompt and personal service on petitioners was rendered impossible. It failed to show the reason why personal ser-vice could not be made. It was also not shown that efforts were made to find petitioners personally and that said efforts failed. These requirements are indispensable because substituted service is in derogation of the usual method of service. It is an extraordinary method since

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it seeks to bind the defendant to the consequences of a suit even though notice of such action is served not upon him but upon another whom the law could only presume would notify him of the pending proceedings. Failure to faithfully, strictly, and fully comply with the statutory requirements of substituted service renders such service ineffective.

Likewise, nowhere in the return of summons or in the records of the case was it shown that xxx the person on whom substituted service of summons was effected, was a person of suitable age and discretion residing in petitioners’ residence.

2. he pertinent provision of the Rules of Court (Sec. 7, Rule 14, Rules of Court) provides that substituted service may be availed of if “for justifiable causes, the defendant cannot be served within a reasonable time.” What exactly is a reasonable time?

“Within a reasonable time” contemplates a period of time longer than that demarcated by the word “prompt,” and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed (Laus v. Court of Appeals, 219 SCRA 688, 698).

3. The case of Manotoc v. CA, 499 SCRA 21, is more specific:

“. . . Reasonable time is defined as so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done. . . Under the Rules, the service of summons has no set period. . . To the plaintiff, “reasonable time” means no more than seven (7) days since an expeditious processing of the com-plaint is what the party wants. To the sheriff “reasonable time means 15 to 30 days because at the end of the month, it is a practice for the branch clerk to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return provides data to the clerk of court, which the clerk uses in the Monthly Report of


Cases to be submitted to the Office of the Court Admin-istrator within the first ten (10) days of the succeeding month. Thus one month from the issuance of summons can be considered “reasonable” with regard to personal service on the defendant.”

The Court has set stringent conditions prior to the availment of substituted service.

Manotoc thus, stresses: “. . . since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant.” For sub-stituted service to be available there must be several at-tempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventu-ally resulted in failure to prove impossibility of prompt service. “Several attempts” means at least three (3) tries, preferably on at least two different dates. In addition the sheriff must cite why such efforts where unsuccessful. It is only then that impossibility of service can be confirmed or accepted (Underscoring supplied).

The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service (citing Domagas v. Jensen, 448 SCRA 663). The efforts made to find the defendant and the rea-sons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defen-dant, the name/s of the alleged occupants of the alleged residence or house of defendant and all other acts done, though futile, to. serve the summons on the defendant must be specified in the Return to justify substituted ser-vice. The form on Sheriffs Return of Summons on Sub-stituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant per-sonally and the fact of failure. Supreme Court Circular No. 5 dated November 5, 1989 requires that impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts which should be made in the proof of service.”

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4. A mere general claim or statement in the Sheriffs Return that the server had made “several attempts” to serve the summons, without making reference to the details of facts and circumstances surrounding such attempts, does not comply with the rules on substituted service (Manotoc v. Court of Appeals, 499 SCRA 21). A return which merely states the alleged whereabouts of the defendants without indicating that such information was verified and without specifying the efforts exerted to serve the summons is not enough for compliance. So is a mere general statement that such efforts were made (Jose v. Boyon, 414 SCRA 216, 223).

How substituted service is made 1. On the assumption that substituted service is now

justified, how then may summons be served by substituted service? The answer is supplied by Sec. 7 of Rule 14. The rule provides the server with options, to wit:

(a) leaving copies of the summons at the defendant’s residence, or

(b) leaving copies of the summons at the defendant’s office or regular place of business. The rule does not, however, allow leaving the summons with anyone else other than with those mentioned therein. Thus, if the summons is left at the defendant’s residence, the summons must be served by leaving the same with a person of suitable age and discretion residing therein. If served in the defendant’s office or regular place of business, the summons must be left with some competent person in charge thereof.

2. A person of suitable age and discretion is one who has attained the full age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of summons. The Manotoc case explains:

“Discretion is defined as the ability to make deci-sions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. Thus, to be of sufficient age and discretion,


such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have a “relation of confidence” to the defendant, ensuring that the latter would receive or at least be notified of the receipt of summons. The sheriff must therefore, determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to deliver it to the defendant or at least notify the defendant of said receipt of summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons” (Manotoc v. Court of Appeals, 499 SCRA 21).

3. A competent person in charge of the office or regular place of business must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, the details must be contained in the Return (Manotoc v. Court of Appeals, supra).

It is not necessary that the person in charge of the defendant’s regular place of business be specifically authorized to receive the summons. It is enough that he appears to be in charge (Guanzon v. Arradaza, 510 SCRA 309, 318 citing Gochanco v. CFI of Negros Occidental, 157 SCRA 40).

Effect if defendant does not actually receive the summons Where the substituted service has been validly served, its

validity is not affected by the defendant’s failure to actually receive the summons from the person with whom the summons had been left. It is immaterial that the defendant does not in fact receive actual notice. The rule does not require the sheriff or any authorized server to verify that the summons left in

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the defendant’s residence or office was actually delivered to the defendant (Montalban v. Maximo, 22 SCRA 1070,1079).

Montalban v. Maximo is emphatic: “It is immaterial then that defendant does not in

fact receive actual notice. This will not affect the validity of the service. Accordingly, the defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, “which in fact may not become actual notice to him” and which may be accomplished in his lawful absence from the country. For, the rules do not require that papers be served on de-fendant personally or a showing that the papers were de-livered to defendant by the person with whom they were left.”

When defendant prevents service of summons What if diligent efforts were undertaken by the Sheriff to serve

summons upon the defendant but he was prevented from effecting such service by the defendant himself? This question was addressed in Robinson v. Miralles, 510 SCRA 678.

Here, the plaintiff filed a complaint for a sum of money against the defendant. Summons was served on the defendant at her given address but per return of service of the sheriff it was learned that the defendant no longer resided at such address. Later, the trial court issued an alias summons to be served at the defendant’s new address.

Again, the summons could not be served on the defendant. The Sheriff explained:

“The Security Guard assigned at the gate of Alabang Hills refused to let me go inside the subdivision so that I could effect the service of the summons to the defendant in this case. The security guard alleged that the defendant had given them instructions not to let anybody proceed to her house if she is not around. I explained to the Security Guard that I am a sheriff serving the summons to the defendant, and if the defendant is not around, summons can


be received by any person of suitable age and discretion living in the same house. Despite of all the explanation, the security guard by the name of A.H. Geroche still re-fused to let me go inside the subdivision and served (sic) the summons to the defendant. The same thing happened when I attempted to serve the summons previously.

Therefore, the summons was served by leaving a copy thereof together with the copy of the complaint to the security guard by the name of A.H. Geroche, who refused to affix his signature on the original copy thereof, so he will be the one to give the same to the defendant.”

Eventually, the plaintiff filed a motion to declare the de-fendant in default for her failure to file an answer seasonably despite service of summons. The trial court granted respondent’s motion declaring petitioner in default and allowing respondent to present her evidence ex parte. A judgment by default was rendered and upon respondent’s motion, the trial court issued a writ of execution.

The defendant filed with the trial court a petition for relief from the judgment by default. She claimed that summons was improperly served upon her, thus, the trial court never acquired jurisdiction over her and that all its proceedings are void. The defendant contended that the service of summons upon the subdivision security guard is not in compliance with Sec. 7, Rule 14 since he is not related to her or staying at her residence. Moreover, he is not duly authorized to receive summons for the residents of the village. Hence, the substituted service of summons is not valid and that the trial court never acquired jurisdiction over her person.

The trial court issued a Resolution denying the petition for relief. Petitioner filed a motion for reconsideration, but it was denied by the trial court.

Declared the Supreme Court:

“We have ruled that the statutory requirements of substituted service must be followed strictly, faithfully, and fully and any substituted service other than that authorized by the Rules is considered ineffective (Citing

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Paluwagan ng Bayan Savings Bank v. King, G.R. No. 78252, April 12,1989,172 SCRA 60). However, we frown upon an overly strict application of the Rules. It is the spirit, rather than the letter of the procedural rules, that governs.

In his Return, the sheriff declared that he was re-fused entry by the security guard in the subdivision. The latter informed him that petitioner prohibits him from al-lowing anybody to proceed to her residence whenever she is out. Obviously, it was impossible for the sheriff to effect personal or substituted service of summons upon pe-titioner. We note that she failed to controvert the sheriffs declaration. Nor did she deny having received the sum-mons through the security guard.

Considering her strict instruction to the security guard, she must bear its consequences. Thus, we agree with the trial court that summons has been properly served upon petitioner and that it has acquired jurisdic-tion over her.”

The summons was therefore, properly served (Robinson v. Miralles, 510 SCRA 678, 683-684).

C. Summons by publication

1. As a general proposition, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam.

Jose v. Boyon, 414 SCRA 216, 224, instructs:

“xxx summons by publication applies only when the action is in rem or quasi in rem.”

2. Against a resident, the recognized mode of service is service in person on the defendant under Sec. 6 of Rule 14. In a case where the defendant cannot be served within a reasonable time, substituted service will apply following Sec. 7, Rule 14, Rules of Court, but not summons by publication.


3. Summons by publication, however, against a resident in an action in personam is permissible under the conditions set forth in the following rules:

a. Section 14 of Rule 14 (where the identity or whereabouts of the defendant are unknown);

b. Section 16 of Rule 14 (when the defendant is a resident temporarily out of the Philippines).

Both provisions apply to “any action” which necessarily includes an action in personam.

4. The summons by publication under Sec. 15 of Rule 14 on extraterritorial service of summons has no application to residents of the Philippines. It applies “When the defendant does not reside and is not found in the Philippines...”

5. Against a nonresident, jurisdiction is acquired over the defendant by service upon his person while said defendant is within the Philippines. It is a long standing rule that when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over his person (Velayo-Fong v. Velayo, 510 SCRA 320, 331-332; Banco Do Brasil v. Court of Appeals, 333 SCRA 545, 557). This is in fact the only way of acquiring jurisdiction over his person if he does not voluntarily appear in the action. Summons by publication against a non-resident in an action in personam is not a proper mode of service.

6. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it (Cynthia Alaban v. Court of Appeals, 470 SCRA 697, 706). Publication is likewise not a mode of service in an action in personam against a resident defendant except under Secs. 14 and 16 of Rule 14.

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Service upon a defendant whose identity or whereabouts are unknown

1. Where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained despite a diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order (Sec. 14, Rule 14, Rules of Court).

The rule in Sec. 14 of Rule 14 authorizes summons by publication in any action (Sec. 14, Rule 14, Rules of Court) and the rule obviously does not distinguish whether the action is in personam, in rem or quasi in rem. The tenor of the rule authorizes summons by publication whatever the action may be as long as the identity of the defendant is unknown or his whereabouts are unknown. (Santos v. PNOC Exploration Corporation, 566 SCRA 272).

2. Under previous rulings, jurisdiction over the defendant in an action in personam cannot be acquired by summons by publication (Pantaleon v. Asuncion, 105 Phil. 761, 765; Citizens Surety and Insurance Co., Inc. v. Melencio Herrera, 38 SCRA 369, 372; Magdalena Estate v. Nieto, 125 SCRA 758, 761; Consolidated Ply ware Industries v. Breva, 166 SCRA 589, 594).

For instance, in Pantaleon v. Asuncion, 105 Phil. 761, 765, a case for the recovery of a sum of money, the Court ruled that in an action in personam against a resident, summons by publication would not satisfy the due process requirement. Here, the trial court ordered the defendant to be summoned by publication when the Sheriff could not effect the services of both the original and alias summonses. The trial court then declared the defendant in default for his failure to file an answer despite the summons by publication. It subsequently rendered a judgment by default against the defendant. On appeal, the Supreme Court ruled that in an action in personam as in the case under consideration, service of summons by publication cannot confer upon the court jurisdiction over the person of the defendant.


Pantaleon stressed that . . personal service within the forum is essential to the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit to the authority of the court. In other words, summons by publication cannot — consistently with the due process clause in the bill of rights — confer upon the court jurisdiction over said defendant.”

The doctrine succinctly laid down in Pantaleon was further expressed in the 1971 case of Citizens Surety and Insurance Co., Inc. v. Melencio-Herrera, 38 SCRA 369,371-372, but with the added advice that in case the defendant in an action in personam cannot be served with summons, the remedy is not to dismiss the action but to hold the case pending in the archives of the court pending the determination of the whereabouts of the person and properties of the defendant. As to why a search of the property of the defendant is necessary, the Court declared:

“. . . The proper recourse for a creditor in the same situation as petitioner, is to locate properties, real or per-sonal of the resident defendant-debtor with unknown ad-dress and cause them to be attached under Rule 57 . . . in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and ef-fective.”

In 1983, in a case where the defendants were claimed to be concealing themselves to evade service of summons upon their persons, the Supreme Court had the occasion to apply the principles in both Pantaleon and Citizens Surety. Reiterating the rules therein, the Court declared that in an action strictly in personam, personal service of summons is essential for the acquisition of jurisdiction over the defendant and service by publication on resident defendants is not “due process of law^ (Magdalena Estate, Inc. v. Nieto, 125 SCRA 758, 761).

3. Unlike the cases previously adverted to, the current phraseology of Sec. 14 of Rule 14 authorizes without doubt

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summons by publication in any action where the identity of the defendant is unknown or his whereabouts are unknown. Section 14 of Rule 14 provides:

“Sec. 14... In any action where the defendant is des-ignated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained with diligent inquiry, service may, by leave of court, be ef-fected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.” (Emphasis supplied).

Service upon a resident temporarily out of the Philippines 1. Under Sec. 16 of Rule 14, “When any action is commenced

against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be effected out of the Philippines, as under the preceding section.” (underscoring supplied).

2. The ‘preceding section’ referred to in Sec. 16 is necessarily Sec. 15 on extraterritorial service of summons. Significantly, one of the modes of service of summons under Sec. 15 is “by publication in a newspaper of general circulation...” Summons by publication, therefore, applies to a resident of the Philippines who is temporarily out of the country.

3. Specifically, service of summons upon a resident of the Philippines who is temporarily out of the country, may, by leave of court be effected out of the Philippines as under the rules on extraterritorial service in Sec. 15 of Rule 14. This means that the service of summons may possibly be any of the following modes, unless ruled otherwise:

(a) by personal service as in Sec. 6 of Rule 14; (b) by publication in a newspaper of general circulation

together with a registered mailing of a copy of the summons and the order of the court to the last known address of the defendant; or

(c) by any manner the court may deem sufficient (Sec. 16, Rule 14, Rules of Court).


Like in the case of an unknown defendant or one whose whereabouts are unknown, the rule affecting residents who are temporarily out of the Philippines applies in any action.

4. Let it be noticed that summons by publication may be effected against the defendant because publication is one of the modes of summons under Sec. 15 of Rule 14. But this rule authorizing summons by publication appears superfluous and unnecessary. Without such provision, a resident defendant temporarily outside of the Philippines may still be served through the substituted service under Sec. 7 of Rule 14.

A resident defendant is temporarily out of the country, if he has a residence or place of business in the Philippines, and because he cannot be served within a reasonable time because of his absence in the Philippines, this absence would now trigger the application of the rule on substituted service of summons (Montalban v. Maximo, 22 SCRA 1070,1080).

Montalban explained:

“A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up” (See also PCIB v. Alejandro, 533 SCRA 738, 754).

Extraterritorial service of summons 1. Extraterritorial service of summons in Sec. 15 of Rule 14

applies when the following requisites concur: (a) the defendant is a nonresident; (b) he is not found in the Philippines; and

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(c) the action against him is either in rem or quasi in rem (Jose v. Boyon, 414 SCRA 216, 224).

2. The phraseology of the rule indicates that a fundamental concept to be remembered in extraterritorial service of summons is that it does not apply to a defendant who is a resident of the Philippines. It does not also apply to an action in personam (Sec. 15, Rule 14, Rules of Court).

The possible exception to this rule is provided for under Sec. 16 of Rule 14 (Residents temporarily out of the Philippines) where service may, by leave of court, be effected out of the Philippines as under the preceding section. The preceding section is Sec. 15 of Rule 14. Note also that Sec. 16 of Rule 14 refers to “any action,” hence, either in rem or in personam.

Actions involved in extraterritorial service of summons 1. The specific actions, which are either in rem or quasi in

rem that will justify the application of extraterritorial service of summons in actions involving a nonresident are:

(a) actions that affect the personal status of the plaintiff;

(b) actions which relate to, or the subject matter of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent;

(c) actions in which the relief demanded consists, wholly or in part, in excluding the defendant from an interest in property located in the Philippines; and

(d) when the defendant’s property has been attached in the Philippines.

2. “When the defendant is a nonresident and he is not found in the country, summons may be served extraterritori- ally in accordance with Rule 14, x x x of the Rules of Court. Under this provision, there are four (4) requisites when extraterritorial service of summons is proper, namely: “(1) when


the action affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is property, within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant non-resident’s property has been attached within the Philippines.” In these instances, service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient.

Clear from the foregoing, extrajudicial service of summons apply only where the action is in rem, an action against the thing itself instead of against the person, or in an action quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res (Banco Do Brasil v. Court of Appeals, 333 SCRA 545, 557).

3. The Supreme Court, in a much later case explains the rule on summons against non-residents, thus:

x x x “Thus, extraterritorial service of summons applies

only where the action is in rem, that is, an action against the thing itself instead of against the person, or in an ac-tion quasi in rem, where an individual is named as de-fendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. The rationale for this is that in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.

Where the action is in personam, that is, one brought against a person on the basis of her personal liability,

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jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. When the defendant is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdic-tion over the person. Summons on the defendant must be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. This cannot be done, however, if the defendant is not physically present in the country, and thus, the court can-not acquire jurisdiction over his person and therefore can-not validly try and decide the case against him” (Velayo- Fong v. Spouses Velayo, 510 SCRA 320, 331-332; Banco Do Brasil v. Court of Appeals, 333 SCRA 545, 557).

4. If the action is in personam, extraterritorial service of summons will not be available. There is no extraterritorial service of summons in an action in personam. Hence, extraterritorial service upon a nonresident in an action for injunction which is in personam is not proper (Kawasaki Port Service Corporation v. Amores, 199 SCRA 230, 237; Banco Do Brasil v. Court of Appeals, 333 SCRA 545, 557). Where the action is in personam, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case. However, when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over him (Banco Do Brasil v. Court of Appeals, supra).

5. An action for injunction is a personal action as well as an action in personam, not an action in rem or quasi in rem. As a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court. In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants cannot subject them to the processes of the regional trial courts which are powerless to reach them outside the region over which they exercise their authority (Kawasaki Port Service Corporation v. Amores, 199 SCRA 230,237; Bar 2009).


Modes of extraterritorial service (Bar 2008) 1. When the conditions for the applicability of extra-

territorial service of summons are complied with, the following are the alternative modes of extraterritorial service, all of which require a prior leave of court:

(a) By personal service as provided for in Sec. 6 of Rule 14 governing ‘service in person on defendant’;

(b) By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and the order of the court shall be sent by registered mail to the last known address of the defendant; or

(c) In any manner the court may deem sufficient (Sec. 15, Rule 14, Rules of Court).

2. The personal service (now service in person on defendant) using the procedure in Sec. 6 of Rule 14, will not have the effect of acquiring jurisdiction over the person of the non-resident defendant even if the summons and the copy of the complaint are personally received by him in the country where he may be found and served. The service in this case is made in compliance with the requirements of due process, not for the purpose of acquiring jurisdiction over the person of the defendant.

3. There is a settled rule that a nonresident defendant who refuses to come to the country voluntarily remains beyond the personal processes of the court which, therefore, cannot acquire jurisdiction over him (Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 930; Perkins v. Dizon, 69 Phil. 186, 189).

In the language of Banco Espanol-Filipino:

“Jurisdiction over the person of the defendant, if acquired at all in such an action, is obtained by the vol-untary submission of the defendant or by the personal service of process upon him within the territory where

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the process is valid. If however, the defendant is a non-resident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all.” (Banco Espanol-Filipino, supra, 930).

The equally early case of Perkins v. Dizon, supra at 189, echoes the above rule, thus:

“When the defendant is a non-resident and refuses to appear voluntary, the court cannot acquire jurisdiction over his person even if the summons be served by publi-cation, for he is beyond the reach of judicial process. No tribunal established by one State can extend its process beyond its territory so as to subject to its decisions either persons or property located in another State.”

Be it noted that in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nevertheless, summons is served upon the defendant not for the purpose of vesting the court with jurisdiction over the person of the defendant but merely for satisfying the due process requirement (Asiavest Limited v. Court of Appeals, 296 SCRA 539, 554). Compliance with due process is actually the underlying purpose of all modes of extraterritorial service.

Application of principles 1. It must again be stressed that if the defendant is a non-

resident, personal service of summons (more appropriately called “service in person on defendant”) within the state is essential to the acquisition of jurisdiction over the person of the defendant and this is not possible if the defendant is not within the country. The court, thus, cannot acquire jurisdiction over his person. So when the action is for the recovery of a sum of money against the non-resident defendant, the summons by publication is ineffective for the trial court to acquire jurisdiction over the person of the defendant. Any judgment


rendered against him is, therefore, null and void for lack of jurisdiction over the defendant (Banco do Brasil v. Court of Appeals, 333 SCRA 545, 557).

Example No. 1: An American tourist while in the Philippines, incurred hotel bills of P2 million. Without paying his bills, he surreptitiously left the country. The hotel filed an action for a sum of money and with leave of court effected summons by publication. The defendant made no appearance in any form and judgment by default was rendered against him. Is he bound by the judgment? Answer: He is not bound by the judgment because the same was rendered without jurisdiction over his person. The summons by publication did not enable the court to acquire jurisdiction over him. Here, the action is one in personam.

Example No. 2: Mr. D is a balikbayan, a former Filipino, and a naturalized Canadian citizen. He visited the country to attend the funeral of his father from whom he inherited a parcel of land. He obtained a loan while in the Philippines and executed a real estate mortgage on his inherited land. He left without paying the debt. An action to foreclose the mortgage was filed. How may the court obtain jurisdiction over the person of Mr. X? Answer: There is no way. He is already out of the country. However, jurisdiction over the person of the defendant is not necessary and, hence, irrelevant under the facts of the case because the action for foreclosure is not an action in personam. A foreclosure suit is a quasi in rem action. In this kind of action, jurisdiction over the person of the defendant is not required. Summons by publication or other modes of extraterritorial service under Sec. 15 of Rule 14 is enough to acquire jurisdiction over the res. May the court therefore validly render a judgment in the foreclosure proceedings? The court can. It has jurisdiction over the res as long as summons by any of the means allowed under the rules on extraterritorial service is effected (Sec. 15, Rule 14, Rules of Court).

Example No. 3: Mexicano, a tourist in the Philippines, by his employment of force and intimidation, contracted a marriage with Filipina, a hotel receptionist. When Mexicano

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left for Mexico to visit his parents, Filipina filed an action for annulment of the marriage with damages of P3 million. With leave of court, extraterritorial service of summons by publication in a newspaper of general circulation was effected. A copy of the summons and the order of the court were also sent by registered mail to the last known address of Mexicano. The manner of summons was determined by the court to be the most sufficient under the circumstances. Mexicano did not appear in the action. The court later decreed the annulment of the marriage and awarded damages after all procedural and substantive requirements were complied with. Was the judgment validly rendered?

The judgment was validly rendered in so far as the decree of annulment is concerned. The action is an action in rem and one affecting the personal status of the plaintiff. In this kind of action, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not essential in this case, so whether or not there was jurisdiction over Mexicano, this fact did not affect the authority of the court to decide on the issue of annulment. However, the judgment of the court awarding damages to Filipina is void as to the defendant. By its nature, a claim for damages is in personam. The court is without jurisdiction to award damages unless it has first acquired jurisdiction over the person of Mexicano. The only way by which this type of jurisdiction may be acquired in the case at bar is either through service in person upon Mexicano in the Philippines or by his voluntary appearance in the action. Neither of these occurred in the case under consideration.

Example No. 4: In Valmonte v. Court of Appeals, 252 SCRA 92, the defendants are husband and wife in a complaint for partition filed by the plaintiff. They are both residents of the USA. The husband is a member of the Philippine bar and practices his profession in the Philippines. For this purpose, he commutes between his residence abroad and Manila where he has an office. Service of summons was served upon the husband who was at the time in Manila but he refused to accept the summons for his wife on the ground of lack of authority from the latter. The sheriff left without leaving a copy of the


summons and complaint for the defendant wife. The plaintiff later moved to declare the defendant wife in default for her failure to file her answer to the complaint. The defendant husband, appearing as counsel for his wife, made a special appearance to oppose the motion. The motion of the plaintiff was denied by the trial court. A motion for reconsideration of the order denying the motion was similarly denied. The Court of Appeals, however, in a petition for certiorari filed by the plaintiff, granted the petition and declared the defendant wife in default.

The issue that was raised in the Supreme Court was whether or not under the facts, the defendant wife could be validly served with summons through her husband.

The resolution of the question initially involves a determination of the nature of the action. Is it in personam? Is it in rem? Is it quasi in rem? If the action is in rem or quasi in rem jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. The res refers to the personal status of the plaintiff who is domiciled in the Philippines (as in an action to annul a marriage filed by a resident of the Philippines), or to the property subject of litigation in the Philippines (as in partition). Now, if the defendant is a nonresident and is not found in the Philippines and the action is in rem or quasi in rem, summons may be served following the rules on extraterritorial service under Sec. 15 of Rule 14. Under this provision, summons may be served by (a) personal service (b) publication and mailing of summons and order of the court by registered mail, and (c) in any manner deemed sufficient by the court. Service of summons in the manner provided for under Sec. 15 of Rule 14 is for the purpose of complying with the requirements of fair play and due process.

What then is the nature of an action for partition and accounting? Jurisprudence has considered the action as one quasi in rem. The purpose of this kind of action is not to render a judgment directly against the defendant but to render a judgment affecting his interest in a specific property (Val-

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monte v. Court of Appeals, 252 SCRA 92). Since, the defendant wife was not summoned by either of the first two modes of summons under Sec. 15 of Rule 14, the next matter to be resolved is whether or not summons intended for the wife may be served on her husband under the theory that the summons could fall under the third mode — “in any other manner the court may deem sufficient.”

Resolving substantially similar facts, the Supreme Court ruled that the service of summons upon the husband could not fall within the ambit of the third mode. First, it was certainly not deemed sufficient by the trial court as shown by its denial of the motion to declare the defendant in default. Second, it was not made upon order of the court and with leave of court as required by the rule. Third, the husband was not appointed as an attomey-in-fact of the wife and was not authorized by the wife to receive summons for her (See Valmonte v. Court of Appeals, supra).

Valmonte contrasts with an early case where the Supreme Court considered service of summons to the resident wife in the Philippines as service to the non-resident husband because the wife had been appointed by the defendant husband as his attorney-in-fact in a prior civil case, was given authority to sue in his behalf and represent him in suits filed against him and the second case (Gemperle v. Schenker, 125 Phil. 458).

Remedy of attachment against non-resident defendants not found in the Philippines

1. There are situations where a non-resident defendant has properties in the Philippines probably because he used to be either a citizen or a resident of the country. If the suit is in personam, as when the suit is for a sum of money, and the non-resident defendant is no longer found in the Philippines, summons by publication and other modes provided for in Sec. 15 of Rule 14, would be ineffective to acquire jurisdiction over his person. The modes of summons under the said provision of the Rules would be available only in an action in rem or quasi in rem.


Being an action in personam, the remedy is to file the suit and at the same time avail of the provisional remedy of attachment. Under Sec. l[f] of Rule 57, one ground upon which the writ of preliminary attachment may issue is in “an action against a party who does not reside and is not found in the Philippines.”

Following established principles, jurisdiction over the person of the defendant would no longer be required when there is a writ of preliminary attachment of the defendant’s properties because the suit has assumed the character of an action quasi in rem which merely requires jurisdiction over the res. After availing of extraterritorial service of summons, the suit can then proceed despite the absence of the defendant because in this case, the property of the defendant would now be the object of the judicial power.

As held by the Court:

“In case the defendant does not reside and is not found in the Philippines, . . . the remedy of the plaintiff, in order for the court to acquire jurisdiction to try the case is to convert the action into a proceeding in rem or quasi in rem by attaching the property of the defendant. . . . The service of summons in this case (which may be by publication coupled with the sending by registered mail of the copy of the summons and the court order to the last known address of the defendant), is no longer for the pur-pose of acquiring jurisdiction but for the compliance with the requirements of due process (Philippine Commercial International Bank v. Alejandro, 533 SCRA 738, 752).

2. However, where the defendant is a resident who is temporarily out of the Philippines, attachment of his/her property in an action in personam is not always necessary in order for the court to acquire jurisdiction to hear the case because the defendant may be served by substituted service. Substituted service of summons (under the present Sec. 7, Rule 14 of the Rules of Court) is the normal mode of service of summons that will confer jurisdiction on the court over the person of residents temporarily out of the Philippines.

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Meaning, service of summons may be effected by (a) leaving copies of the summons at the defendant’s residence with some person of suitable discretion residing therein, or (b) by leaving copies at the defendant’s office or regular place of business with some competent person in charge thereof. Hence, the court may acquire jurisdiction over an action in personam by mere substituted service without need of attaching the property of the defendant (Philippine Commercial International Bank v. Alejandro, 533 SCRA 738, 752-754).

Summons when complaint is amended 1. Sec. 8 of Rule 10 declares that an amended pleading

supersedes the pleading that it amends. “When a pleading is amended, the original one is deemed

abandoned. Hence, the amended pleading replaces the original one which no longer forms part of the record and the trial of the case is made on the basis of the amended pleading only” (Paradise Sauna Massage Corp. v. Ng, 181 SCRA 719, 727).

2. A question that could be reasonably asked at this juncture is: Should another summons be served upon the defendant if the complaint is amended?

An earlier case seemed to suggest that the need for service of summons depends initially on whether or not the amendments are substantial. If the amendments are substantial as when new causes of actions are introduced, then there is a need to serve another summons. Thus, merely serving the amended complaint is not equivalent to service of summons (Atkins v. Domingo, 44 Phil. 680). Other cases made the need for another summons dependent on whether or not the defendant had already appeared in the action at the time of the amendment of the complaint. Hence, new summons would be unnecessary when the defendant had already submitted himself to the jurisdiction of the court as when he had filed a motion to dismiss prior to the amendment (Ong Peng v. Custodio, 1 SCRA 780, 783; Gumabay v. Baralin, 77 SCRA 258, 262).

The rule, however, has been more clearly and definitively explained in Vlason Enteprises v. Court of Appeals, 310 SCRA


26, 257-258, even as it reiterated the rule that an amended pleading supersedes the original one that it amends. Here, the Court held that it does not ipso facto follow that the service of a new summons is required whenever a complaint is amended. Where the defendant has already appeared before the trial court by virtue of a summons on the original complaint, the amended complaint may be served upon them without need for another summons, even if new causes of actions are alleged. Conversely, when the defendant has not yet appeared in court and no summons had been validly served, new summons on the amended complaint must be served on them. It is not the change in the cause of action that gives rise to the need to serve another summons for the amended complaint, but rather the acquisition of jurisdiction over the person of the defendant. If the trial court has not yet obtained jurisdiction over them, a new service of summons for the amended complaint is required.

— oOo —

Chapter VI

PROCEEDINGS AFTER SERVICE OF SUMMONS AND DISMISSAL OF ACTIONS

Preliminary statements Recall that the summons served upon the defendant directs

him to answer within the time fixed in the Rules. It is coupled with a notice that unless the defendant so answers, the plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2, Rule 14, Rules of Court).

There are, however, reasons that may preclude the plaintiff from filing an immediate answer to the complaint. For instance, if there are allegations or claims in the complaint that are not spelled out with sufficient clarity or particularity, the preparation of a reasonably intelligent responsive pleading is not possible. The more viable option of the defendant in this case is not to serve and file either an answer or a motion to dismiss but to file a motion for bill of particulars. Under Rule 12 (Sec. 1) of the Rules of Court, a party may move for a definite statement, or for a bill of particulars of “any matter which is not averred with sufficient definiteness or particularity.” The purpose of the motion is to enable the movant “properly to prepare his responsive pleading” (Sec. 1, Rule 12, Rules of Court).

If, on the other hand, the complaint’s averments are clear enough to allow the filing of an answer, the defendant is not compelled to file said answer if a ground for the dismissal of the complaint pursuant to Rule 16 is available. In this case, the defendant may file a motion to dismiss the complaint instead of filing an answer.

417


Hence, three options are available to the defendant upon receipt of the complaint, to wit:

(a) Filing of a motion for bill of particulars;

(b) Filing of a motion to dismiss; or

(c) Filing of an answer to the complaint.

A. MOTION FOR BILL OF PARTICULARS

1. Although under the Rules, the defendant is required to answer the complaint within fifteen (15) days from service of summons (Sec. 1, Rule 11, Rules of Court), the defendant need not file his answer to the complaint within the required period if there are matters in the complaint, which are vague or ambiguous or not averred with sufficient definiteness. Instead, he may file a motion for bill of particulars (Rule 12, Rules of Court).

2. As long as the allegations of a complaint make out a cause of action, the ambiguity in some allegations of the complaint or the failure to allege facts with sufficient particularity does not justify the filing of a motion to dismiss. The proper remedy is to file a motion for bill of particulars.

3. It must be made clear that a motion for bill of particulars is not directed only to a complaint. It is a motion that applies to any pleading which in the perception of the movant contains matters which are not alleged with sufficient definiteness or particularity.

When to file the motion 1. A motion for bill of particulars is to be filed before

responding to a pleading (Sec. 1, Rule 12, Rules of Court). The period to file the motion refers to the period for filing the responsive pleading in Rule 11. Thus, where the motion for bill of particulars is directed to a complaint, the motion should be generally filed within fifteen (15) days after service of summons as provided under Sec. 1 of Rule 11. If the motion is directed to a counterclaim or a cross-claim, then the same must be filed

CHAPTER VI 419 PROCEEDINGS AFTER SERVICE OF SUMMONS AND DISMISSAL OF ACTIONS

within ten (10) days from service of the counterclaim or crossclaim which is the period provided for by Sec. 4 of Rule 11.

2. In case of a reply to which no responsive pleading is provided for by the Rules, the motion for bill of particulars must be filed within ten (10) days from the service of said reply (Sec. 1, Rule 12, Rules of Court).

Purpose of the motion 1. The purpose of the motion is to seek an order from the court

directing the pleader to submit a bill of particulars which avers matters with “sufficient definiteness or particularity” to enable the movant to properly prepare his responsive pleading (Sec. 1, Rule 12, Rules of Court). It is not to enable the movant to prepare for trial.

Where the purpose of the movant is to enable him to prepare for trial, the appropriate remedy is to avail of the discovery procedures from Rules 23 to 29 and also of the purposes of the mandatory pre-trial under Rule 18 of the Rules of Court.

2. In less technical terms, a function of a bill of particulars is to clarify the allegations in the pleading so an adverse party may be informed with certainty of the exact character of the cause of action or a defense. Without the clarifications sought by the motion, the movant may be deprived of the opportunity to submit an intelligent responsive pleading.

3. Since the purpose of the motion for bill of particulars is to allow the movant to properly prepare his own pleading, it would be erroneous for the motion to ask the court to order the adverse party to disclose or to set forth in his pleading the evidences relied upon for his cause of action or defense. These are matters obtainable by the various modes of discovery. Besides, under Sec. 1 of Rule 8, pleadings are meant to contain only a direct statement of the ultimate facts which constitute the party’s claims or defenses. Matters of evidentiary facts are to be omitted.

4. It would likewise not be proper for a motion for bill of particulars to call for the production of the particulars constituting malice, intent, knowledge or condition of the


mind which, under the Rules (Sec. 5, Rule 8, Rules of Court) may be averred generally. To require a pleader to do so would be to require the statement of evidentiary facts in a pleading. Sec. 1 of Rule 8 mandates the omission of statements of mere evidentiary facts.

5. It would not, however, be incorrect to move for a bill of particulars to require the averment of the particular circumstances of fraud or mistake. Under the Rules (Sec. 5, Rule 8, Rules of Court), such matters must be alleged with particularity.

It is, however, submitted that when the omission of the particulars constituting fraud results into an absence of one or more elements of the cause of action involving fraud, the same may be invoked as a ground for dismissal for failure to state a cause of action.

6. A motion for bill of particulars to require a pleader to set forth matters showing the jurisdiction of a court to render its judgment is not proper. The provisions of Sec. 6, Rule 8 are clear: In pleading a judgment or decision it is sufficient to aver the same without setting forth matter showing jurisdiction to render it.

The rule applies in pleading a judgment or decision not only of a domestic court but also of a foreign court. It likewise applies to a judgment or decision of a quasi-judicial tribunal, or a board or officer (Sec. 6, Rule 8, Rules of Court).

7. A motion for bill of particulars filed for the purpose of requiring the pleader to specify the details leading to the performance or occurrence of all conditions precedents is not proper because under Sec. 3 of Rule 8, a general averment of the performance or occurrence of all conditions precedent shall be sufficient.

8. In Republic v. Sandiganbayan, 540 SCRA 431, 448- 449, the Court ruled that an allegation that the “defendant acted “in unlawful concert” with the other defendant in illegally amassing assets, property and funds in amounts disproportionate to the latter’s income,” is a proper subject of a motion for bill of particulars. Plaintiff is bound to clarify the

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AND DISMISSAL OF ACTIONS

specific nature, manner and extent of the alleged collaboration between the defendants. The allegation in the complaint does not actually state the ultimate facts to show the alleged “unlawful concert.” Allegations couched in general terms are not statements of ultimate facts.

Purpose of a motion for bill of particulars in a criminal case Note that in a criminal case, the purposes of a motion for bill of

particulars are (a) to enable the movant to properly plead, and (b) to prepare for trial (Sec. 9, Rule 116, Rules of Court).

Requirements for the motion 1. Aside from the requirements for a motion as set forth in

Rule 15, the motion shall point out the (a) defects complained of, (b) the paragraphs wherein they are contained, and (c) the details desired (Sec. 1, Rule 12, Rules of Court).

Action of the court (Bar 2008) 1. Upon receipt of the motion, the clerk of court must

immediately bring the same to the attention of the court (Sec. 2, Rule 12, Rules of Court).

2. The motion having been brought to its attention, the court has three possible options, namely, (a) to deny the motion outright, (b) to grant the motion outright, or (c) to hold a hearing on the motion or to allow the parties the opportunity to be heard (Sec. 2, Rule 12, Rules of Court). The options available to the court disclose that a hearing is not mandatory before it denies or grants the motion, the holding of a hearing being one that is addressed to judicial discretion.

Compliance with the order 1. If the motion for bill of particulars is granted, in whole or

in part, the court shall order the pleader to submit a bill of particulars to the pleading to which the motion is directed. The compliance must be effected within ten (10) days from notice of the order, unless a different period is fixed by


the court (Sec. 3, Rule 12, Rules of Court). Compliance with the order is not necessarily within ten (10) days from notice of the order because the court may fix a different period for compliance.

2. In complying with the order, the pleader may file the bill of particulars or a more definite statement either in (a) a separate pleading or (b) in the form of an amended pleading. In either case, a copy thereof is required to be served upon the adverse party (Sec. 3, Rule 12, Rules of Court).

Bill of particulars as part of the pleading The bill of particulars submitted becomes part of the pleading

for which it is intended (Sec. 6, Rule 12, Rules of Court).

Effect of non-compliance with the order of the court or insuf-ficient compliance

If the order is not obeyed or if there is an insufficient compliance of the order, the court has the following options: (a) to order the striking out of the pleading, (b) to order the striking out of the portions of the pleading to which the order was directed, or (c) to make such other order it may deem just (Sec. 4, Rule 14, Rules of Court).

Stay of period to file responsive pleading 1. A motion for bill of particulars is not a pleading, hence,

not a responsive pleading. Whether or not his motion is granted, the movant may file his responsive pleading. When he files a motion for bill of particulars, the period to file the responsive pleading is stayed or interrupted.

2. After service of the bill of particulars or of a more definite pleading, or after notice of the denial of his motion, the movant may file his responsive pleading within the period to which he was entitled at the time the motion for bill of particulars was filed. If he has still eleven (11) days to file his responsive pleading at the time the motion for bill of particulars was filed, then he has the same number of days to



file his responsive pleading from the notice of the denial of his motion (Sec. 5, Rule 12, Rules of Court). This is because under Sec. 5 of Rule 12, the filing of the motion for bill of particulars stays the period to file a responsive pleading.

3. If the movant has less than five (5) days to file his pleading after service of the bill of particulars or after notice of the denial of his motion, the period to file his pleading shall nevertheless be not less than five (5) days in any event (Sec. 5, Rule 12, Rules of Court). Thus, from notice of the denial of his motion, the minimum period he has to serve and file his responsive pleading is five (5) days even if only a day is left for him to file his pleading at the time the motion for bill of particulars is filed.

B. MOTION TO DISMISS

Assuming that the allegations in the complaint have been made clear and particularized by the filing of a bill of particulars, the defendant may elect not to file his answer immediately. He may first explore the possibility of filing a motion to dismiss under Rule 16. If there is no ground for a motion to dismiss, he has to file his answer.

While the filing of a motion to dismiss is not prohibited, the remedy being an integral part of the Rules of Court, the current policy of the Supreme Court is not to encourage the filing of a motion to dismiss but to instead file an answer to the complaint. Thus, within one day from receipt of the complaint, summons shall be prepared which shall contain a reminder to the defendant to observe restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses in the answer (A.M. No. 03-1-09-SC [IA1.1], July 13, 2004).

A motion to dismiss is not a pleading

1. A motion to dismiss is not a pleading. It is merely a motion. Under the Rules, a motion is an application for relief other than by a pleading (Sec. 1, Rule 15, Rules of Court).

The pleadings allowed under the Rules are: (a) complaint, (b) answer, (c) counterclaim, (d) cross-claim, (e) third (fourth-


etc.) -party complaint, (f) complaint in intervention (Sec. 2, Rule 6, Rules of Court), and (g) reply (Sec. 10, Rule 6, Rules of Court). A motion is not one of those specifically designated as a pleading under the Rules of Court.

Hypothetical admissions of a motion to dismiss (Bar 1989) 1. A motion to dismiss hypothetically admits the truth of

the factual allegations of the complaint (Peltan Development, Inc. v. Court of Appeals, 270 SCRA 82,91; Cuarto v. De Luna, 22 SCRA 459, 461). However, the hypothetical admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging 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, 55 SCRA 349, 354). Only deemed hypothetically admitted are material allegations, not conclusions. An allegation that a contract is an “equitable mortgage” is a conclusion and not a material allegation. Hence, it is not deemed admitted by the motion to dismiss (Dalandan v. Julio, 10 SCRA 401, 410).

2. A hypothetical admission could be illustrated thus: If the plaintiff files an action for damages against the defendant who files a motion to dismiss, the defendant in effect says that even assuming the facts to be true as alleged by the plaintiff, the latter has failed to show that he has a right to relief because his action has prescribed or because the court where the action was filed has no jurisdiction over the subject matter of the complaint. The filing of a motion to dismiss does not amount to an actual admission of the material allegations of the complaint. The admission is not the judicial admission contemplated in Sec. 4 of Rule 129 of the Rules of Court. As the jurisprudence cited above puts it, the admission is merely “hypothetical.”

Omnibus motion (Bar 2010) 1. When a motion to dismiss is filed, all grounds for

objection available at the time the motion is filed must be invoked in the motion. This is required under the “omnibus



motion rule.” The objections which are not invoked are deemed waived.

Section 8 of Rule 15 provides that “a motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.” A motion to dismiss is an “omnibus motion” and thus is covered by the “omnibus motion rule” because by its nature, it attacks a pleading by praying for its dismissal.

2. There are, however, grounds which are not waived even if not invoked in the motion to dismiss. These are (a) lack of jurisdiction over the subject matter, (b) the pendency of another action between the same parties for the same cause or litis pendentia, (c) a prior judgment which bars the action or res judicata, and (d) the statute of limitations or prescription (Sec. 8, Rule 15; Sec. 1, Rule 9). Such grounds are not waived because the provisions of Sec. 8 of Rule 15 which embodies the ‘omnibus motion rule’ are by its terms, “Subject to the provisions of Section 1 of Rule 9.” Rule 9 contains the defenses which are not waivable.

Assume that at the time the motion to dismiss was filed, the following grounds were available: (a) lack of jurisdiction over the person of the defendant; (b) failure to state a cause of action; (c) litis pendentia; and (d) improper venue. The defendant filed a motion to dismiss using the following as objections: (a) failure to state a cause of action, and (b) lack of jurisdiction over the person of the defendant. When the motion was denied, the defendant served and filed his answer invoking litis pendentia and improper venue as affirmative defenses. Under the “omnibus motion rule,” improper venue has been waived and thus, can no longer be invoked as affirmative defense in the answer. It was a defense already available at the time the motion was filed and should have been included as one of the objections in the motion to dismiss. On the other hand, the defense of litis pendentia is not waived even if not included as an objection in the motion to dismiss because it is one of the non-waivable defenses enumerated in Rule 9.


3. The ‘omnibus motion rule’ applies only when a motion to dismiss is filed. If no motion to dismiss is filed, any of the grounds for dismissal under Rule 16 may be pleaded as an affirmative defense in the answer (Sec. 6, Rule 16, Rules of Court). No defense is waived in this case because no motion to dismiss was filed. There is indeed an unmistakable difference in the legal effects between filing and not filing a motion to dismiss in relation to the waiver of defenses.

Thus, it has been held that if no motion to dismiss has been filed, any of the grounds for dismissal provided in the Rules may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Based on the foregoing, a preliminary hearing undeniably is subject to the discretion of the trial court. The trial court’s order granting or dispensing with the need for a preliminary hearing may not be corrected by certiorari absent any showing that the trial court had acted without jurisdiction or in excess thereof or with such grave abuse of discretion as would amount to lack of jurisdiction (Misamis Occidental II Cooperative, Inc. v. David, 468 SCRA 63, 71).

Contents and form of the motion to dismiss 1. The motion to dismiss, like any other motion, shall state

the relief sought and the grounds upon which it is based and if required by the Rules or is necessary to prove the facts alleged therein, shall be accompanied by supporting affidavits and papers (Sec. 3, Rule 15, Rules of Court).

2. The motion shall be set for hearing by the applicant (Sec. 4, Rule 15, Rules of Court) and shall contain a notice of hearing addressed to all parties concerned. Such notice shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion (Sec. 5, Rule 15, Rules of Court).

3. The notice requirement in a motion is mandatory and its absence renders the motion defective. As a rule, a motion without a notice of hearing is considered pro forma



and does not affect the reglementary period for the filing of the requisite pleading (Jehan Shipping Corporation v. National Food Authority, 477 SCRA 781, 788).

Time to file the motion 1. Within the time for filing the answer but before filing said

answer, a motion to dismiss may be filed on any of the grounds mentioned in Rule 16 (Sec. 1, Rule 16, Rules of Court).

2. A motion to dismiss that is filed after the answer has been filed, is considered filed out of time and the defending party is estopped from filing the motion to dismiss (Philville v. Javier, 477 SCRA 533, 537). This is only a general rule.

When a motion to dismiss may be filed even after the answer has been served and filed

1. A motion to dismiss may be filed even after the filing of the answer and will not be considered filed out of time if the ground raised in the motion is either of the following and such ground appears from the pleadings or the evidence on record:

(a) lack of jurisdiction over the subject matter; (b) that there is another action pending between the same

parties for the same cause; (c) that the action is barred by a prior judgment; or (d) that the action is barred by the statute of limitations (Sec.

1, Rule 9, Rules of Court). 2. Under Sec. 1 of Rule 9, defenses and objections not

pleaded either in a motion to dismiss or in the answer are deemed waived. The above grounds, it has been recently ruled, do not only supply exceptions to the rule that defenses and objections not pleaded either in a motion to dismiss or in an answer are deemed waived. They are also the grounds which allow courts to dismiss cases motu proprio on any of such grounds, provided that the ground for dismissal is apparent from the pleadings or the evidence on record (Heirs of Valientes v. Ramas, 638 SCRA 444, 451, December 15, 2010).


Grounds for motion to dismiss Under Sec. 1 of Rule 16 of the Rules of Court, a motion to

dismiss may be filed on any of the following grounds: (a) That the court has no jurisdiction over the person of the

defending party; (b) That the court has no jurisdiction over the subject matter

of the claim; (c) That the venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same

parties for the same cause (Bar 2010); (f) That the cause of action is barred by a prior judgment or

by the statute of limitations; (g) That the pleading asserting the claim states no cause of

action; (h) That the claim or demand set forth in the plaintiff’s

pleading has been paid, waived, abandoned or otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and

(j) That a condition precedent for filing the claim has not been complied with. (Bar 2011)

Lache$ as a ground for a motion to dismiss under Rule 16 In one case, in reversing the RTC’s order of dismissal, the

Court of Appeals held that laches could not be a ground to dismiss a complaint since it is not one of the grounds for the dismissal of a civil action under Sec. 1 of Rule 16 of the Rules of Court. The Supreme Court categorically held that the Court of Appeals “is not entirely correct.” Under paragraph (h) of Sec. 1 of Rule 16, one of the grounds for the dismissal of an action is where a claim or demand set forth in the plaintiffs



pleading has been paid, waived, abandoned, or otherwise extinguished. The Court declared: “The language of the rule, particularly on the relation of the words “abandoned” and “otherwise extinguished” to the phrase “claim or demand deemed set forth in the plaintiff’s pleading” is broad enough to include within its ambit the defense of bar by laches. However, when a party moves for the dismissal of the complaint based on laches, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved. Thus, being factual in nature, the elements of laches must be proved or disproved through the presentation of evidence by the parties (Pineda v. Heirs ofEliseo Guevara, 515 SCRA 627, 636).

Res judicata as a ground for a motion to dismiss 1. Res judicata as a ground for dismissal is based on two

grounds, namely: (1) public policy and necessity, which makes it to the interest of the State that there should be an end to litigation — republican ut sit litium; and (2) the hardship on the individual of being vexed twice for the same cause — nemo debet bis vexari et eadem causa. A conflicting doctrine would subject the public peace and quiet to the will and dereliction of individuals and prefer the regalement of the litigious disposition on the part of suitors to the preservation of the public tranquility and happiness (FELS Energy, Inc. v. Province ofBatangas, 516 SCRA 186, 201).

2. Accordingly, courts will simply refuse to reopen what has been decided. They will not allow the same parties or their privies to litigate anew a question once it has been considered and decided with finality. Litigations must end and terminate sometime and somewhere. The effective and efficient administration of justice requires that once a judgment has become final, the prevailing party should not be deprived of the fruits of the verdict by subsequent suits on the same issues filed by the same parties (FELS Energy, Inc. v. Province ofBatangas, supra at 202).


Concepts of res judicata 1. Under the rule of res judicata, a final judgment or decree

on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies, in all later suits and on all points and matters determined in the previous suit. The term literally means a “matter adjudged, judicially acted upon, or settled by judgment.” The principle bars a subsequent suit involving the same parties, subject matter, and cause of action. The rationale for the rule is that “public policy requires that controversies must be settled with finality at a given point in time.”

2. The doctrine of res judicata embraces two (2) concepts: the first is “bar by prior judgment” under paragraph (b) of Rule 39, Section 47 of the Rules of Court, and the second is “conclusiveness of judgment” under paragraph (c) thereof. Res judicata applies in the concept of “bar by prior judgment” if the following requisites concur: (1) the former judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and the second action, identity of parties, of subject matter and of causes of action (Topacio v. Banco Filipino Savings and Mortgage Bank, 635 SCRA 50, 61-62, November 17, 2010; See also Heirs of Wenceslao Tabia v. Court of Appeals, 516 SCRA 431, 443; Bar 2011).

Elements of res judicata The concept of res judicata has the following elements: (1) the

former judgment must be final; (2) the court which rendered it had jurisdiction over the subject matter and the parties; (3) the judgment must be on the merits; and (4) there must be between the first and the second actions, identity of parties, subject matter and causes of action. The application of the doctrine of res judicata does not require absolute identity of parties but merely substantial identity of parties. There is substantial identity of parties when there is community of interest or privity of interest between a party in the first and



a party in the second case even if the first case did not implead the latter (FELS Energy, Inc. v. Province of Batangas, supra at 202).

Application of res judicata to quasi-judicial proceedings It has been held that the rule of res judicata which forbids the

reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasijudicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers. The Director of Lands is a quasi-judicial officer. As such officer, his decisions and orders rendered pursuant to his quasi-judicial authority, have upon their finality, the force and binding effect of a final judgment within the purview of the doctrine of res judicata (Heirs ofWenceslao Tabia v. Court of Appeals, supra).

No res judicata in criminal proceedings Res judicata is a doctrine of civil law and, thus, has no bearing

on criminal proceedings. Hence, the argument that the dismissal of a case during preliminary investigation bars a further reinvestigation because of the doctrine of res judicata is untenable. Even if the argument were to be expanded to contemplate “res judicata in prison grey” or the criminal law concept of double jeopardy, the reinvestigation cannot be barred by reason of double jeopardy. The dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial (Trinidad v. Office of the Ombudsman, 539 SCRA 415, 423- 424; Bar 2010).

Pleading grounds as affirmative defenses 1. If no motion to dismiss has been filed, any of the grounds

provided for dismissal under this Rule maybe pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16, Rules of Court).


2. Implied under Sec. 6 of Rule 16 is the rule that the grounds for a motion to dismiss are not waived even if the defendant fails to file a motion to dismiss because he may still avail of the defenses under Rule 16 as affirmative defenses in his answer.

3. The preliminary hearing authorized on the affirmative defenses raised in the answer, applies only if no motion to dismiss has been filed. As a rule, a preliminary hearing is not authorized when a motion to dismiss has been filed. When filed, the hearing to be conducted would be the regular hearing of the motion under Sec. 4 of Rule 15 and Sec. 2, Rule 16 and not a preliminary hearing under Sec. 6 of Rule 16.

An exception previously carved out by the Court is if the trial court had not categorically resolved the motion to dismiss. Another exception would be justified under the liberal construction rule as when it is evident that the action is barred by res judicata. A strict application of Sec. 6 of Rule 16 would accordingly lead to absurdity when an obviously barred complaint continues to be litigated (Sps. Rasdas v. Sps. Villa, 477 SCRA 538, 545-546).

4. May a ground previously invoked in a denied motion to dismiss be invoked anew? The ground may still be invoked. “. . . the denial of a motion to dismiss does not preclude any future reliance on the grounds relied thereupon” (Sps. Rasdas v. Sps. Villa, supra at 546).

Remedy of the defendant if the motion is denied 1. If the motion to dismiss is denied, the movant shall file

his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event. This period shall be computed from the receipt of the notice of denial (Sec. 4, Rule 16, Rules of Court).

2. As a rule, the filing of an answer and going through the usual trial process, and later, the filing of a timely appeal from an adverse judgment are the proper remedies against a denial of a motion to dismiss.



The filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The order of denial, being interlocutory, is not appealable by express provision of Sec. 1(b), Rule 41.

When certiorari is available 1. Where the judgment or final order is not appealable,

like an interlocutory order, Rule 41 declares that the “aggrieved party may file an appropriate civil action under Rule 65.” The remedy would therefore be certiorari, prohibition or mandamus. This remedy, however, is predicated upon an allegation and a showing that the denial of the motion was tainted with grave abuse of discretion amounting to lack of jurisdiction where the remedy chosen is either certiorari or prohibition or both. In case the remedy chosen is mandamus, there must be a showing that the respondent court unlawfully neglected the performance of an act which the law specifically enjoins. Without such showing, Rule 65 cannot be availed of as a remedy.

2. Jurisprudence declares: “An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered.

In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction (Douglas Lu Ym v. Gertrudes Nabua, 452 SCRA 298, 305-306; Bar 2011).

Remedies of the plaintiff if the motion to dismiss is granted 1. If the motion is granted, the complaint is dismissed. The

plaintiff then has several options.


(a) Depending upon the ground for the dismissal of the action, the plaintiff may simply refile the complaint. For instance, if the ground for dismissal was anchored on improper venue, the plaintiff may file the action in the proper venue.

(b) He may appeal from the order of dismissal where the ground relied upon is one which bars the refiling of the complaint like res judicata, prescription, extinguishment of the obligation or violation of the statute of frauds (Sec. 5, Rule 16, Rules of Court). Since the complaint cannot be refiled, the dismissal is with prejudice. Under Sec. 1(g) of Rule 41, it is an order dismissing an action without prejudice which cannot be appealed from. Conversely, where the dismissal is with prejudice, an appeal from the order of dismissal is not precluded. However, where the ground for dismissal for instance, is the failure of the complaint to state a cause of action, the plaintiff may simply file the complaint anew but since the dismissal is without prejudice to its refiling, the order of dismissal cannot be appealed from under the terms of Sec. 1(g) of Rule 41 of the Rules of Court.

Where the ground for dismissal is lack of jurisdiction over the subject matter, the dismissal is without prejudice to the refiling of the complaint. Following the tenor of Sec. 1(g) of Rule 41, an order dismissing a complaint for lack of jurisdiction over the subject matter is a dismissal without prejudice and, hence, no appeal may be had from the order of dismissal. Despite Sec. 1 of Rule 41, appeal may nevertheless be taken from the order dismissing an action for lack of jurisdiction over the subject matter in a situation contemplated under Sec. 8 of Rule 40. This provision specifically allows, by necessary im-plication, an appeal from orders dismissing cases on the ground of lack of jurisdiction over the subject matter. The tenor of Sec. 8 of Rule 40, therefore, operates to furnish an exception to the general rule enunciated in Sec. 1 of Rule 41. Inis situation, it must be noted, applies in a dismissal made in the Municipal Trial Court and not to a dismissal in the Regional Trial Court.



(c) The plaintiff may also avail of a petition for certiorari. This remedy is available if the court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice (Sec. 1, Rule 41, Rules of Court).

When complaint cannot be refiled (Bar 2011) 1. An order granting a motion to dismiss shall bar the

refiling of the same action or claim if the dismissal is based on any of the following grounds (Sec. 5, Rule 16, Rules of Court):

(a) The cause of action is barred by a prior judgment (Sec. l[f], Rule 16, Rules of Court);

(b) The cause of action is barred by the statute of limitations (Sec. l[f], Rule 16, Rules of Court);

(c) The claim or demand has been paid, waived, abandoned or otherwise extinguished (Sec. l[h], Rule 16, Rules of Court); and

(d) The claim on which the action is founded is un-enforceable under the provisions of the statute of frauds (Sec. l[i], Rule 16, Rules of Court).

2. Where the defendant is barred from refiling the action, the remedy under the circumstances is to file an appeal because by the clear language of Sec. 5, Rule 16 the dismissal is subject to the right of appeal. Since under this provision, the dismissal bars the refiling of the same action or claim, such dismissal is one with prejudice. This kind of dismissal is appealable as a consequence of Sec. 1(g) of Rule 41. Under this provision, it is an order dismissing an action without prejudice which is not appealable.

Effect of dismissal of complaint on the counterclaim (Bar 2008; Bar 2010)

1. The dismissal of a complaint shall not prevent the prosecution in the same or a separate action of a counterclaim pleaded in the answer of the defendant (Sec. 6, 2nd par.,


Rule 16, Rules of Court). Thus, where the defendant pleads a counterclaim in his answer, and after the preliminary hearing on his affirmative defenses, the court dismisses the complaint, it would be error for the court to dismiss the counterclaim.

2. The second paragraph of Sec. 6 of Rule 16 clearly provides:

“ x x x The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.”

Hearing of the motion to dismiss 1. A motion to dismiss is a litigated motion and hence, is to

be heard. In the hearing, the parties shall submit their arguments on the questions of law and they shall submit their evidence as to the questions of fact involved if such evidence is available at the time of the hearing. If the case goes to trial, the evidence presented during the hearing of the motion to dismiss shall automatically be part of the evidence of the party presenting the same (Sec. 2, Rule 16, Rules of Court).

2. In Capiral v. Robles, G.R. No. 173628, November 16, 2011, the petitioner contends that there is nothing in Sec. 2, Rule 16 of the Rules of Court which requires a trial-type hearing for the resolution of a motion to dismiss. Petitioner argues that the RTC, in requiring a trial-type hearing, deferred the resolution of the subject Motion to Dismiss and, in so doing, violated Sec. 3, Rule 16 of the Rules of Court.

The Court did not agree, holding that insofar as hearings on a motion to dismiss are concerned, Sec. 2, Rule 16 of the Rules of Court sanctions trial-type proceedings in the sense that the parties are allowed to present evidence and argue their respective positions before the court. The court, citing previous precedents, likewise ruled that the issues raised in a motion to dismiss have to be determined in accordance with the evidence and facts presented, not on the basis of unsubstantiated allegations and that the courts could not afford to dismiss a litigant’s complaint on the basis of



half-baked conclusions with no evidence to show for it. In emphasizing the need for a formal hearing, the Court held that the demand for a clear factual finding to justify the grant or denial of a motion to dismiss cannot be dispensed with. To this end, the Court added that Sec. 2, Rule 16 of the Rules of Court allows not only a hearing on the motion to dismiss, but also for the parties to submit their evidence on the questions of fact involved, which may be litigated extensively at the hearing or hearings on the motion. During the said hearings, the parties are allowed to submit their respective evidence, and even rebut the opposing parties’ evidence. The hearings should provide the parties the forum for full presentation of their sides. Moreover, from the trial court’s perspective, the extent of such hearings would depend on its satisfaction that the ground in filing the motion to dismiss has been established or disestablished.

In Capiral v. Robles, the petitioner’s ground in filing his Motion to Dismiss is that he has been openly, continuously and exclusively possessing the subject property in the concept of an owner for more than ten years and that he has explicitly repudiated his co-ownership of the subject property with his co-heirs. The Court clearly declared in the case that evidence is obviously needed in this situation, for it is not to be expected that said ground, or any facts from which its existence may be inferred, will be found in the averments of the complaint. When such a ground is asserted in a motion to dismiss, the general rule governing evidence on motions applies. The Court further explained that the rule is embodied in Sec. 7, Rule 133 of the Rules of Court which provides that “[w]hen a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.”

C. DISMISSAL BY THE PLAINTIFF Dismissal by mere notice of dismissal

1. Before the service of an answer or the service of a motion for summary judgment, a complaint may be dismissed


by the plaintiff by filing a notice of dismissal (Sec. 1, Rule 17, Rules of Court).

2. Upon the filing of the notice of dismissal, the court shall issue an order confirming the dismissal (Sec. 1, Rule 17, Rules of Court).

3. It is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies, said order merely confirms a dismissal already effected by the filing of the notice of dismissal. Since the order issued by the court merely confirms the dismissal, it follows that the court does not have to approve the dismissal because it has no discretion on the matter. Before an answer or a motion for summary judgment has been served upon the plaintiff, the dismissal by the plaintiff by the filing of a notice is a matter of right. It is submitted that the dismissal should occur as of the date the notice is filed by the plaintiff and not as of the date the court issues the order confirming the dismissal.

Dismissal without prejudice 1. A dismissal made by the filing of a notice of dismissal is a

dismissal without prejudice, i.e., the complaint can be refiled. This is the general rule.

The dismissal will, however, be one with prejudice in any of the following situations:

(a) the notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or

(b) the plaintiff has previously dismissed the same case in a court of competent jurisdiction based on or including the same claim (Sec. 1, Rule 17, Rules of Court).

2. If the plaintiff files a notice of dismissal providing therein a reason that prevents the refiling of the complaint, the dismissal must be deemed one with prejudice even if the notice does not state that the dismissal is with prejudice. This happens when, for instance, the notice provides that the plaintiff recognizes the fact of prescription or extinguishment



of the obligation of the defendant or for reasons stated in Sec. 5 of Rule 16 as when the action is barred by res judicata, the statute of limitations or that the claim or demand has been paid, waived, abandoned or otherwise extinguished.

Two-dismissal rule (Bar 1989) 1. The ‘two-dismissal’ rule applies when the plaintiff has (a)

twice dismissed actions, (b) based on or including the same claim, (c) in a court of competent jurisdiction.

The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. Since as a rule, the dismissal is without prejudice, the same claim may be refiled. However, if the refiled claim or complaint is dismissed again through a second notice of dismissal, that second notice triggers the application of the two-dismissal rule and the dismissal is to be deemed one with prejudice because it is considered as an adjudication upon the merits.

2. For the above rule to apply, the complaints must have been dismissed in a court of competent jurisdiction. To illustrate: PP files in the Regional Trial Court of Manila, an action to collect P300,000.00 from DD. The complaint was dismissed when PP immediately filed a notice of dismissal. The same claim was again filed in the Metropolitan Trial Court of Manila. Before DD served either an answer or a motion for summary judgment, PP filed a notice of dismissal. Does the two-dismissal rule apply? It does not. The first court, the RTC, was not a court of competent jurisdiction because the claim was below its jurisdictional amount.

Dismissal by filing a motion to dismiss Once either an answer or a motion for summary judgment has

been served on the plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion to dismiss, not a mere notice of dismissal. The motion to dismiss


will now be subject to the approval of the court which will decide on the motion upon such terms and conditions as are just (Sec. 2, Rule 17, Rules of Court). The dismissal under Sec. 2 of Rule 17 is no longer a matter of right on the part of the plaintiff but a matter of judicial discretion.

Effect of dismissal upon a counterclaim already pleaded (Bar 2008; 2010)

1. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiffs motion to dismiss, and the court grants the said motion to dismiss, the dismissal “shall be limited to the complaint” (Sec. 2, Rule 17, Rules of Court). The phraseology of the provision is clear: the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because the rule makes no distinction. The rule provides:

“ x x x The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim x x x ”


2. The defendant, if he so desires, may prosecute his counterclaim in a separate action unless he manifests his preference to have his counterclaim resolved in the same action. He shall inform the court of such preference within fifteen (15) days from notice of the motion to dismiss served by the plaintiff (Sec. 2, Rule 17, Rules of Court).

3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3 of Rule 17, wherein the dismissal of the complaint does not carry with it the dismissal of the counterclaim. The same provision also grants the defendant a choice in the prosecution of his counterclaim.

Dismissal without prejudice (Sec. 2, Rule 17) The dismissal authorized under Sec. 2 of Rule 17 is a dismissal

without prejudice except if the order of dismissal specifies that it is with prejudice (Sec. 2, Rule 17, Rules of Court).

CHAPTER VI 441 PROCEEDINGS AFTER SERVICE OF SUMMONS AND DISMISSAL OF ACTIONS

Dismissal due to the fault of plaintiff (Sec. 3, Rule 17) 1. A complaint may be dismissed even if the plaintiff has no

desire to have the same dismissed. The dismissal in this case will be through reasons attributed to his fault. Sec. 3 of Rule 17 provides the following grounds for dismissal:

(a) the failure of plaintiff, without justifiable reasons, to appear on the date of the presentation of his evidence in chief;

(b) the failure of the plaintiff to prosecute his action for an unreasonable length of time;

(c) the failure of the plaintiff to comply with the Rules of Court; or

(d) the failure of the plaintiff to comply with any order of the court.

2. The dismissal due to the fault of the plaintiff may be done by the court on its own motion (motu proprio) or upon a motion filed by the defendant 6Sec. 3, Rule 17, Rules of Court).

Effect of dismissal on the counterclaim (Sec. 3, Rule 17; Bar 2010)

1. The dismissal of the complaint under Sec. 3 of Rule 17, i.e., because of the fault of the plaintiff, is without prejudice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action.

2. A significant case, Pinga v. Heirs of Santiago, G.R. No. 170354, June 30,2006, confirms the above rule:

“ x x x Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise. In fact, the dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim, x x x ” 3. Despite the silence of Sec. 3 of the then Rule 17 of the old

Rules of Court, previous jurisprudence laid emphasis


on whether the counterclaim was compulsory or permissive in character. Such distinction was provided by another provision of the 1964 Rules particularly Section 2 of Rule 17, which stated that in instances wherein the plaintiff seeks the dismissal of the complaint, “If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”

Of the cases before the adoption of the 1997 Rules of Civil Procedure, BA Finance Corp. v. Co., G.R. No. 105751, 30 June 1993, 224 SCRA 163, particularly stands out among previous cases dealing with the effect of the dismissal of an action on the counterclaims already pleaded before the dismissal. BA Finance Corporation held “that the dismissal of the complaint for nonappearance of plaintiff at the pre-trial, upon motion of the defendants, carried with it the dismissal of their compulsory counterclaim.”

4. In Pinga, quoting Justice Regalado, the Court declared:

“ x x x Under this revised Sec. [2], where the plain-tiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either prosecute his counterclaim in a separate action or to have the same resolved in the same action. Should he opt for the first alternative, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. Should he choose to have his counterclaim disposed of in the same action wherein the complaint had been dismissed, he must manifest such preference to the trial court within 15 days from notice to him of plaintiffs motion to dismiss xxx regardless of whether his counterclaim is compulsory or permissive.



With the aforestated amendments in Secs. 2 and 3 laying down specific rules on the disposition of counterclaims involved in the dismissal actions, the controversial doctrine in BA Finance Corporation v. Co, et al. (G.R. No. 105751, June 30,1993) has been abandoned, together with the apparent confusion on the proper application of said Secs. 2 and 3 x x x.”

Pinga further holds: “To be certain, when the Court promulgated the 1997

Rules of Civil Procedure, including the amended Rule 17, those previous jural doctrines that were inconsistent with the new rules incorporated in the 1997 Rules of Civil Procedure were implicitly abandoned insofar as incidents arising after the effectivity of the new procedural rules on 1 July 1997. BA Finance, or even the doctrine that a counterclaim may be necessarily dismissed along with the complaint, clearly conflicts with the 1997 Rules of Civil Procedure. The abandonment of BA Finance as doctrine extends as far back as 1997, when the Court adopted the new Rules of Civil Procedure. If, since then, such abandonment has not been affirmed in jurisprudence, it is only because no proper case has arisen that would warrant express confirmation of the new rule. That opportunity is here and now, and we thus rule that the dismissal of a complaint due to the fault of the plaintiff is without prejudice to the right of the defendant to prosecute any pending counterclaims of whatever nature in the same or separate action. We confirm that BA Finance and all previous rulings of the Court that are inconsistent with this present holding are now abandoned” (Pinga v. Heirs of Santiago, 494 SCRA 393; Underscoring supplied).

Dismissal with prejudice (Sec. 3, Rule 17) The dismissal under Sec. 3 of Rule 17 shall have the effect of

an adjudication on the merits, unless otherwise declared by the court. Hence, as a rule, it is a dismissal with prejudice.

Dismissal of a class suit A class suit shall not be dismissed or compromised without the

approval of the court (Sec. 2, Rule 17, Rules of Court).


Dismissal of counterclaim, cross-claim or third-party complaint Rule 17 shall apply also to the dismissal of any counterclaim,

cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice of dismissal as in Sec. 1 of Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served, or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4, Rule 17, Rules of Court).

— oOo —

Chapter VII PRE-TRIAL AND MODES OF

DISCOVERY

A. PRE-TRIAL

Concept, nature and purpose of a pre-trial (Bar 2009) 1. A pre-trial is a procedural device held prior to the trial for

the court to consider the following purposes: (a) The possibility of an amicable settlement or a submission

to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the

pleadings; (d) The possibility of obtaining stipulations or admissions of

facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a

commissioner; (g) The propriety of rendering judgment on the pleadings, or

summary judgment, or of dismissing the action should a valid ground therefore be found to exist (Bar 2009);

(h) The advisability or necessity of suspending the pro-ceedings; and

(i) Such other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18, Rules of Court).

445


2. The pre-trial is mandatory in civil cases (Sec. 2, Rule 18, Rules of Court; Interlining Corporation v. Philippine Trust Company, 378 SCRA 521, 525; Tiu v. Middleton, 310 SCRA 580, 586; Bar 1989)

3. In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, pre-trial is also mandatory (Sec. 1, Rule 118, Rules of Court).

4. A pre-trial conference is likewise mandatory in both civil and criminal cases under the Rules on Summary Procedure (Sec. 7, Sec. 14,1991 Rules on Summary Procedure).

5. Under the former rule (Sec. 3, Rule 20,1964 Rules of Court), the court was authorized to render a judgment on the pleadings or a summary judgment if at the trial the court finds that facts exist to warrant the rendition of said judgments. The court under the old rule may do so on its own motion.

Under the current rule (Sec. 2[g], Rule 18), the court’s authority is confined to a mere determination of the propriety of rendering a judgment on the pleadings or a summary judgment. It is submitted that the requisite motion should be filed and heard pursuant to Rule 34 (<Judgment on the Pleadings) and Rule 35 (Summary Judgments), before either judgment is to be rendered.

Effect of failure to conduct a pre-trial The failure of a judge to conduct a pre-trial conference in a civil

case is contrary to elementary rules of procedure. Rule 18 of the Rules of Court imposes a duty upon the plaintiff to promptly move ex parte that the case be set for pre-trial. “It is elementary and plain that the holding of such a pre-trial conference is mandatory and failure to do so is inexcusable. When the law or procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to act as if one does not know it constitutes gross ignorance of the law. Such ignorance of a basic rule in court procedure, as failing to conduct pretrial, sadly amounts to gross ignorance and warrants a cor

CHAPTER VII 447 PRE-TRIAL AND MODES OF DISCOVERY

responding penalty” (National Power Corporation v. Adiong, AM. No. RTJ-07-2060, July 27, 2011).

Referral to the Philippine Mediation Center At the start of the preliminary conference, the judge is

mandated to refer the parties and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for purposes of mediation. If mediation fails, the judge will schedule the continuance of the preliminary conference. This rule applies to Metro Manila, Cebu, Davao City, and other places where Philippine Mediation Center Units may be further organized and designated (Administrative Circular No. 20 -2002, March 24, 2002; AM. No. 03-1-09-SC, July 13, 2004).

How pre-trial is called; filing of motion by plaintiff (Bar 1999) In a civil case, it is not the court which initiates the setting of

the case for a pre-trial. It is set at the instance of the plaintiff. Under the Rules, it shall be the duty of the plaintiff, not of the defendant, to promptly file a motion to set the case for pre-trial. This motion is an ex parte motion. This means that the motion need not be the subject of a hearing (Sec. 1, Rule 18, Rules of Court).

When motion is filed by plaintiff The ex parte motion to set the case for pre-trial is to be made

by the plaintiff after the last pleading has been served and filed (Sec. 1, Rule 18, Rules of Court). Specifically, the motion is to be filed within five (5) days after the last pleading joining the issues has been served and filed (Administrative Circular No. 3-99, January 15, 1999). If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).

The meaning of ‘last pleading’

1. The last permissible pleading that a party can file is the reply to the answer to the last pleading asserting a claim.


The claim could be the original complaint, the counterclaim, the cross-claim or the third-party complaint. If an answer is filed and served in response to these claims, the pleading in response to these answers is the reply (Sarmiento v. Juan, 120 SCRA 403, 408) which is to be filed within ten (10) days from the service of the pleading responded to (Sec. 6, Rule 11, Rules of Court).

2. Where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial (Pioneer Insurance & Surety Corporation v. Hontanosas, 78 SCRA 447, 461). However, the ‘last pleading5 need not be literally construed as one having been served and filed. For purposes of the pre-trial, the expiration of the period for filing the last pleading without it having been served and filed is sufficient (Sarmiento v. Juan, supra at 409).

Notice of pre-trial (Bar 1977) 1. The notice of pre-trial shall be served on the counsel of

the party if the latter is represented by counsel. Otherwise, the notice shall be served on the party himself. The counsel is charged with the duty of notifying his client of the date, time and place of the pre-trial (Sec. 3, Rule 18, Rules of Court).

2. The old rule required that the notice be served not only upon the counsel but also upon the party (Sec. 1, Rule 20, 1964 Rules of Court; Samson v. Court of Appeals, 105 SCRA 781, 787) and where no separate notice to the party is sent, it was then the rule that all the proceedings at the pre-trial and subsequent thereto are null and void (Barde v. Posiquit, 164 SCRA 304, 310).

The present rule simplifies the procedure because the notice of pre-trial is served on the counsel, and service is made on the party only if he has no counsel (Agulto v. Tecson, 476 SCRA 395, 402).

3. Notice is so important that it would be grave abuse of discretion for the court for example, to allow the plaintiff to present his evidence ex parte for failure of the defendant

CHAPTER VII PRE-TRIAL AND MODES OF DISCOVERY

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to appear before the pre-trial who did not receive through his counsel a notice of pre-trial. Accordingly, there is no legal basis for a court to consider a party notified of the pre-trial and to consider that there is no longer a need to send notice of pre-trial merely because it was his counsel who suggested the date of pre-trial (Agulto v. Tecson, supra at 406).

Appearance of parties and counsels in the pre-trial (Bar 1992) 1. It shall be the duty of both the parties and their counsels

to appear at the pre-trial (Sec. 4, Rule 18, Rules of Court). 2. Mediation is a part of pre-trial and failure of the plaintiff

to appear thereat merits sanction on the part of the absent party (Senarlo v. Judge Paderanga, 617 SCRA 247, 253-254; Real Bank, Inc. v. Samsung Mabuhay Corporation, 633 SCRA 124, 134, G.R. No. 175862, October 13, 2010).

Effect of failure to appear by the plaintiff (Bar 1989; 1981; 1980) 1. The failure of the plaintiff to appear shall be cause for the

dismissal of the action. This dismissal shall be with prejudice except when the court orders otherwise (Sec. 5, Rule 18, Rules of Court; Mondonedo v. Court of Appeals, 252 SCRA 28, 30).

The former rule (Sec. 2, Rule 20, 1964 Rules of Court) provides that the plaintiff who fails to appear in the pre-trial may be ‘non-suited.’

2. Since the dismissal of the action shall be with prejudice, unless otherwise provided, the same shall have the effect of an adjudication on the merits, thus, final. The remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is appealable. Under the Rules, it is only when the order of dismissal is without prejudice, that appeal cannot be availed of (Sec. l[g], Rule 41, Rules of Court). Since appeal is available, certiorari is not


the remedy because the application of a petition for certiorari under Sec. 65 of the Rules of Court is conditioned upon the absence of appeal or any plain, speedy and adequate remedy in the ordinary course of law (Sec. 1, Rule 65, Rules of Court).

Effect of failure to appear by the defendant (Bar 2011) 1. The failure of the defendant to appear shall be cause to

allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis of the evidence presented by the plaintif"f (Sec. 5, Rule 18, Rules of Court).

The former rule (Sec. 2, Rule 20, 1964 Rules of Court) provided that the defendant who fails to appear in the pretrial may be considered “as in default.”

2. The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is, therefore, merely interlocutory, hence, not appealable. Under Sec. 1(b) of Rule 41, no appeal may be taken from an interlocutory order. The defendant who feels aggrieved by the order may move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari.

How non-appearance is excused 1. The non-appearance of a party may be excused only if a

valid cause is shown for such non-appearance or a representative shall appear in his behalf fully authorized in writing to enter into any of the following matters: (a) an amicable settlement, (b) alternative modes of dispute resolution, and (c) stipulations and admissions of facts (Sec. 4, Rule 18, Rules of Court).

The phraseology of the provision suggests that it is not sufficient for the written authority to give to the representative the power to enter into one of the matters mentioned in Sec. 4 of Rule 18, as when the only authority granted is to enter into an amicable settlement. The authority must also confer upon the representative the power to enter into alternative modes


of dispute resolution and stipulations and admissions of fact. An incomplete authority does not satisfy the requirements of the Rules and should be deemed the equivalent of having no authority at all.

2. Although Sec. 4 uses the disjunctive “or,” the logical meaning of the rule dictates that the written authority given to the representative be coupled with an explanation showing a valid cause for a party’s non-appearance. Common reason suggests that having a written authority but without a justification for a party’s absence or vice versa would not be in accord with the spirit of the Rules.

3. The written authority must be in the form of a special power of attorney. Entering into an amicable settlement for a client who is the principal in the attorney-ciient relationship involves entering into a compromise. Substantive law (Art. 1878[3] of the Civil Code of the Philippines) is explicit: “Special power(s) of attorney are necessary x x x To compromise, to submit questions to arbitration x x x.”

Procedural rules (Sec. 23, Rule 138) likewise prohibit an attorney to compromise his client’s litigation without a “special authority.”

4. In a case, the petitioner and its counsel of record were not present at the scheduled pre-trial conference. It did not also file a pre-trial brief. The court stressed that Rule 18 of the Rules of Court leaves no room for equivocation; appearance of parties and their counsel at the pre-trial conference, along with the filing of a corresponding pre-trial brief, is mandatory. It is a duty. Non-appearance cannot be excused as Sec. 4, in relation to Sec. 6, of Rule 18 allows only two exceptions:

(1) a valid excuse; and (2) appearance of a representative on behalf of a party

who is fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents (Durban Apartments


Corporation v. Pioneer Insurance and Surety Corporation, 639 SCRA 441, 450, January 12, 2011).

Pre-trial brief; filing and contents 1. The parties shall file with the court their respective pre-

trial briefs which shall be received at least three (3) days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party in such manner that will ensure his receipt also at least three (3) day before the date of the pretrial (Sec. 6, Rule 18, Rules of Court).

2. The pre-trial brief shall contain the following matters: (a) A statement of their willingness to enter into an amicable

settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the

purposes thereof; (e) A manifestation of their having availed of or their

intention to avail of the discovery procedures or referral to commissioners; and

(f) The number and names of the witnesses, and the substance of their respective testimonies (Sec. 6, Rule 18, Rules of Court).

Identification and marking of evidence It is vital to have documents and exhibits identified and

marked during the pre-trial. The current rule establishes the policy that no evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in- chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown (A.M. No. 03-1-09-SC, July 13, 2004).


Legal effect of representations and statements in the pretrial brief

The parties are bound by the representations and statements in their respective pre-trial briefs (A.M. 03-1-09-SC, July 13, 2004). Hence, such representations and statements are in the nature of judicial admissions in relation to Sec. 4 of Rule 129 of the Rules of Court. Effect of failure to file a pre-trial brief

1. The failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial (Sec. 6, Rule 18, Rules of Court). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause for dismissal of the action. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex parte.

2. The dismissal of a complaint for failure to file pretrial brief is discretionary on the part of the trial court (Ramos v. Spouses bavendia, 568 SCRA 239, 247).

No termination of pre-trial for failure to settle 1. The judge should not allow the termination of pretrial

simply because of the manifestation of the parties that they cannot settle the case. Instead, he should expose the parties to the advantages of pre-trial. He must also be mindful that there are important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case (A.M. No. 03-1-09-SC, July 13, 2004).

2. If all efforts to settle fail, the trial judge shall endeavor to achieve the other purposes of a pre-trial like, among others, obtaining admissions or stipulations of fact. To obtain admissions, the judge shall ask the parties to submit whatever depositions have been taken under Rule 23, the answers to written interrogatories under Rule 25 and the answers to request for admissions by the adverse party under Rule 26. He may also require the production of documents or things requested by a party under Rule 27 and the results of


the physical and mental examination of persons under Rule 28 (A.M. No. 03-1-09-SC, July 13, 2004).

One day examination of witness rule (Bar 2009) The court shall ask the parties to agree on the specific dates

for continuous trial, adhere to the case flow chart determined by the court and use the time frame for each stage in setting the trial dates. Adherence to the One Day Examination of Witness Rule shall be required where the witness shall be fully examined in one (1) day only, subject to the court’s discretion during the trial on whether or not to extend the examination for justifiable reasons (A.M. No. 03-1-09-SC, July 13, 2004).

Most important witness rule Where no settlement has been effected, the court shall follow

the Most Important Witness Rule, where the court shall determine the most important witnesses and limit the number of such witnesses and require the parties and/or counsels to submit to the branch clerk of court the names, addresses and contact numbers of the witnesses to be summoned by subpoena. Note, however, that the court may also refer the case to a trial by commissioner under Rule 32 (A.M. No. 03-1-09-SC, July 13, 2004).

Questions are to be asked by the judge During the pre-trial, the judge shall be the one to ask

questions on issues raised by the parties and all questions or comments by counsel or parties must be directed to the judge to avoid hostilities between the parties (A.M. No. 03-1-09-SC, July 13, 2004).

Pre-trial order 1. This order of the court is issued by the court upon the

termination of the pre-trial. Under A.M. No. 03-1-09-SC dated July 13, 2004, the pre-trial order shall be issued within ten (10) days after the termination of the pre-trial. This order recites in detail the following:


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(a) The matters taken up in the conference; (b) The action taken thereon; (c) The amendments allowed to the pleadings; and (d) The agreements or admissions made by the parties as to

any of the matters considered (Sec. 7, Rule 18, Rules of Court). These admissions embodied in the pre-trial order are binding upon the parties and conclusive upon them (Heirs ofConahap v. Regafia, 458 SCRA 741, 748).

2. Should the action proceed to trial, the pre-trial order (a) defines and limits the issues to be tried, and (b) controls the subsequent course of the action except if it is modified before trial to prevent manifest injustice (Sec. 7, Rule 18, Rules of Court).

Implied issues are deemed included in the pre-trial order 1. It is true that the issues to be tried between the parties in

a case shall be limited to those defined in the pre-trial order. This rule should not, however, be construed to refer only to those issues mentioned in the pre-trial order. It also includes issues that are implied from those written in the order.

2. It was, thus, held that a pre-trial order is not intended to be a detailed catalogue of each and every issue that is to be taken during the trial, for it is unavoidable that there are issues that are impliedly included among those listed or that may be inferable from those listed by necessary implication which are as much integral parts of the pre-trial order as those expressly listed (Philippine Export and Foreign Loan Guarantee Corporation v. Amalgamated Management and Development Corporation, G.R. No. 177729, September 28,2011).

Distinctions between pre-trial in civil cases and pre-trial in criminal cases (Bar 1997)

1. The pre-trial in a civil case is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18,


Rules of Court). The pre-trial in a criminal case is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118, Rules of Court).

2. The motion to set the case for pre-trial in a civil case is made after the last pleading has been served and filed (Sec. 1, Rule 18, Rules of Court). In a criminal case, the pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused (Sec. 1, Rule 118, Rules of Court).

3. The pre-trial in a civil case considers the possibility of an amicable settlement as an important objective (Sec. 2[aJ, Rule 118, Rules of Court). The pre-trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118, Rules of Court).

4. In a civil case, the agreements and admissions made in the pretrial are not required to be signed by both the parties and their counsels. Under the Rules of Court, they are instead to be contained in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18, Rules of Court). However, A.M. No. 03-1-09- SC dated July 13, 2004 now requires the proceedings during the preliminary conference to be recorded in the “Minutes of Preliminary Conference” to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes.

In a criminal case, there is a stricter procedure required. All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2, Rule 118, Rules of Court).

5. The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff and the defendant in a civil case (Sec. 4, Rule 18, Rules of Court). The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 118, Rules of Court).


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6. A pre-trial brief is specifically required to be submitted in a civil case (Sec. 6, Rule 18, Rules of Court). A pre-trial brief is not specifically required in a criminal case.

Preliminary conference under the Revised Rules on Summary Procedure

1. Under the Revised Rules on Summary Procedure, a preliminary conference shall be held not later than thirty (30) days after the last answer is filed. Here, the rules on pretrial in ordinary cases shall apply except when inconsistent with the rules on summary procedure (Sec. 7, II, 1991 Revised Rules on Summary Procedure). The tenor of the rule indicates the mandatory nature of preliminary conference in cases subject to summary procedure.

2. The failure of the plaintiff to appear in the preliminary conference shall be cause for dismissal of his complaint and the defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim. All crossclaims shall be dismissed (Sec. 7, II, 1991 Revised Rules on Summary Procedure).

If a sole defendant fails to appear, the plaintiff shall be entitled to judgment. This rule shall be inapplicable if one of several defendants who are sued under a common cause of action and had pleaded a common defense shall appear at the preliminary conference (Sec. 7, II, 1991 Revised Rules on Summary Procedure).

3. Within five (5) days from the termination of the pre-liminary conference, the court shall issue an order stating the matters taken up in the conference (Sec. 8, II, Rules on Summary Procedure).

Preliminary conference in the Court of Appeals A preliminary conference may be conducted in the Court of

Appeals but the same is not mandatory. Sec. 1 of Rule 48 provides that at “anytime during the pendency of the case, the court may call the parties and their counsels to a preliminary conference for the following purposes:


“SECTION 1. x x x (a) To consider the possibility of an amicable set-

tlement, except when the case is not allowed by law to be compromised;

(b) To define, simplify and clarify the issues for de-termination;

(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and

(d) To take up such other matters which may aid the court in the prompt disposition of the case.”

B. MODES OF DISCOVERY

Meaning of discovery In general, a discovery is a device employed by a party to

obtain information about relevant matters on the case from the adverse party in preparation for the trial. As contemplated by the Rules, the device may be used by all the parties to the case.

Purpose of discovery 1. The broad purpose of discovery procedures is to permit

mutual knowledge before trial of all relevant facts gathered by both parties so that either party may compel the other to disgorge facts whatever he has in his possession (35A C. J.S. § 527,1960).

2. In the practical sense, the modes of discovery are designed to serve as an additional device aside from a pretrial.

A pre-trial is designed to narrow and clarify the basic issues between the parties, to ascertain the facts relative to the issues and to enable the parties to obtain the fullest


possible knowledge of the issues and facts before civil trials and thus prevent the said trials to be carried on in the dark. It is intended to make certain that all issues necessary to the disposition of a case are properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pretrial conference all issues of law and fact that they intend to raise at the trial, except such as may involve privileged or impeaching matters (Tinio v. Manzano, 307 SCRA 460, 467; Suggested reading: Mercader v. DBP, 332 SCRA 82).

Duty of the court in relation to the modes of discovery The modes of discovery are considered by the Supreme Court

as vital components of case management in pre-trial courts. Hence, aside from preparing the summons within one (1) day from the receipt of the complaint, the court is required to issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five (5) days from the filing of the answer. A copy of this order shall be served upon the defendant together with the summons. A copy of the order shall also be served upon the plaintiff (A.M. No. 03-1-09-SC, July 13, 2004).

Modes of discovery under the Rules of Court (Bar 2000) The following are the modes of discovery under the Rules of

Court:

(a) Depositions pending action (Rule 23); (b) Depositions before action or pending appeal (Rule 24); (c) Interrogatories to parties (Rule 25); (d) Admission by adverse party (Rule 26); (e) Production or inspection of documents and things (Rule 27); and (f) Physical and mental examination of persons (Rule 28).


I. Depositions (Rules 23-24) (Bar 2010)

1. A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court.

The rule provides for either of two methods for taking deposition. It may be either by (a) an oral examination, or by (b) a written interrogatory (Sec. 1, Rule 23, Rules of Court).

2. A deposition may be sought for use in a pending action (Rule 23), a future action (Rule 24), or for use in a pending appeal (Rule 24).

If the deposition is for use during a pending action, it is commonly called a deposition de benne esse and is governed by Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam and is governed by Rule 24.

Depositions pending action; leave of court when required 1. Leave of court is not required after an answer has been

served but leave of court is required before the service of an answer but after jurisdiction has been acquired over any defendant or over the property subject of the action (Sec. 1, Rule 23, Rules of Court).

2. In one case, petitioners contend they have not yet served an answer to respondents because the answers that they have filed with the trial court were made ex abudanti cautela. In other words, they do not consider the answers they filed in court and served on respondents as answers contemplated by the Rules of Court on the ground that same were filed ex abudanti cautela. They contend that since they had not yet filed an answer, any deposition must be made with leave of court.

The court in finding the contention untenable ruled: “We find petitioners’ contention to be untenable. Ex

abudanti cautela means “out of abundant caution” or “to


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be on the safe side.” An answer ex abudanti cautela does not make their answer less of an answer. A cursory look at the answers filed by petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses and the failure to file one within the time allowed therefore may cause a defending party to be declared in default. Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss” (Rosete v. Lim, 490 SCRA 125, 138-139).

Deposition of a prisoner When it is the deposition of a prisoner that is to be taken, his

deposition may be taken only with leave of court and upon such terms as the court may prescribe (Sec. 1, Rule 23, Rules of Court).

Before whom taken 1. Within the Philippines, a deposition need not be taken

before a judge, although it may be taken before one. It may also be taken before a notary public (Sec. 10, Rule 23, Rules of Court) or before any person authorized to administer oaths if the parties so stipulate in writing (Sec. 14, Rule 23, Rules of Court).

2. Outside the Philippines, a deposition may be taken before (a) a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines (Sec. 11, Rule 23, Rules of Court)', (b) such person or officer as may be appointed by commission or letters rogatory; or (c) a person authorized to administer oaths by written stipulation of the parties (Sec. 14, Rule 23, Rules of Court).

3. No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action (Sec. 13, Rule 23, Rules of Court).


Examination of the deponent 1. A party desiring to take the deposition of any person

upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined (Sec. 15, Rule 23, Rules of Court). After the notice is served, the court may make any order for the protection of the parties and the deponents (Sec. 16, Rule 23, Rules of Court).

2. The attendance of witnesses may be compelled by the use of subpoenas (Sec. 1, Rule 23, Rules of Court).

3. The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Secs. 3 to 18 of Rule 132 apply to a deponent (Sec. 3, Rule 23, Rules of Court).

4. Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any 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. 2, Rule 23, Rules of Court).

5. The officer before whom the deposition is taken has no authority to rule on the objections interposed during the course of the deposition although any objections shall be noted by the officer upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection (Sec. 17, Rule 23, Rules of Court).

Use of depositions pending action 1. Any part or all of the deposition, so far as admissible

under the rules of evidence, may be used (a) against any party who was present or represented at the taking of the deposition, or (b) against one who had due notice of the deposition. The


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deposition or any of its parts, may be used at the trial or upon the hearing of a motion or an interlocutory proceeding (Sec. 4, Rule 23, Rules of Court).

2. The deposition may be used for the following purposes: (a) For contradicting or impeaching the testimony of the

deponent as a witness; (b) For any purpose by the adverse party where the deponent

is a party or at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party;

(c) For any purpose by any party, where the deponent is a witness, whether or not a party, if the court finds that (i) the witness is dead, (ii) that the witness resides more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or (v) when exceptional circumstances exists, upon application and notice (Sec. 4, Rule 23, Rules of Court).

Effect of substitution of parties The substitution of parties does not affect the right to use the

depositions previously taken (Sec. 5, Rule 23, Rules of Court). The same rule also provides that when an action has been dismissed and another action involving the same subject and between the same parties or their representatives or successors in interest, is afterwards brought, all the depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken.


Effect of the taking of deposition of a person A person whose deposition is taken by a party does not, by

reason of such deposition, make such person the witness of said party. Sec. 7 of Rule 23 clearly declares that “[A] party shall not be deemed to make a person his own witness for any purpose by taking his deposition.”

Effect of using the deposition of a person While the taking of the deposition of a person does not make

the person a witness of the party taking his deposition, the introduction of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition if used for a purpose other than that of contradicting or impeaching the deponent (Sec. 8, Rule 23, Rules of Court). The same provision, however, does not make this rule applicable to the use by an adverse party of a deposition mentioned in paragraph (b) of Sec. 4 of Rule 23.

Oral deposition 1. A party desiring to take the deposition of any person

upon oral examination shall give to every party to the action a reasonable notice in writing. Such notice is required to contain the following:

(a) the time and place for taking the deposition; and (b) the name and address of each person to be examined, if

known; if not known, there must be a general description sufficient to identify him or the particular class or group to which he belongs (Sec. 15, Rule 23, Rules of Court).

2. Certain guidelines for oral depositions provided for under Sec. 17 of Rule 23 must be observed. These are:

(a) The officer before whom the deposition is taken shall put the witness on oath;

(b) The testimony of the witness or deponent must be recorded and shall be taken stenographically unless the party agree otherwise;


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(c) All objections made at the time of the examination shall be noted;

(d) Evidence objected to shall be taken but subject to the objections.

3. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim (Sec. 17, Rule 23, Rules of Court).

4. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination is waived by the witness and by the parties. The witness may desire some changes in form and substance, in which case such changes shall be entered upon the deposition by the officer with a statement of the reasons of the witness for making such changes. The deposition shall be signed by the witness unless the signing is waived by the parties by stipulation or the deposition cannot be signed because the witness is ill, cannot be found or if he refuses to sign (Sec. 19, Rule 23, Rules of Court).

5. If the deposition is not signed by the witness, the officer shall sign it and state on the record the attendant facts together with the reason given for the non-signing of the deposition. This having been done, the deposition may be used as fully as though it was signed unless on a motion to suppress under Sec. 29[f] of Rule 23 and the court holds that the reasons given for the refusal to sign require rejecting the deposition in whole or in part (Sec. 19, Rule 23, Rules of Court).

6. The officer is required to certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action “Deposition of (name of witness).” He shall likewise promptly file it with the court in which the action is pending or send it by registered mail to


the clerk thereof for filing (Sec. 20, Rule 23, Rules of Court). All parties shall promptly be notified of its filing by the officer taking the deposition (Sec. 21, Rule 23, Rules of Court) and upon payment of reasonable charges, the officer shall furnish a copy of the deposition to any party or to the deponent (Sec. 22, Rule 23, Rules of Court).

Deposition upon written interrogatories 1. A deposition need not be conducted through an oral

examination. It may be conducted through written interrogatories (Sec. 1, Rule 23, Rules of Court).

2. A party desiring to take the deposition of any person upon written interrogatories shall serve the interrogatories upon every other party with a notice stating the name and address of the person who is to answer them, the name and descriptive title and address of the officer before whom the deposition is to be taken (Sec. 25, Rule 23, Rules of Court).

3. The party served with the interrogatories may also serve cross-interrogatories upon the party proposing to take the deposition within ten (10) days from service of the written interrogatories. The latter may, within five (5) days, serve re-direct interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition (Sec. 25, Rule 23, Rules of Court).

4. A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice. He shall proceed promptly to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him (Sec. 26, Rule 23, Rules of Court).

Depositions before action This type of depositions is availed of when a person desires to

perpetuate his own testimony or that of another


person regarding any matter that may be cognizable in any court of the Philippines (Sec. 1, Rule 24, Rules of Court). Perpetuation of testimony before action

1. The perpetuation of a testimony, is done by filing a verified petition in the place of the residence of any expected adverse party (Sec. 1, Rule 24, Rules of Court).

2. Notices shall be sent in accordance with the Rules (Sec. 3, Rule 24, Rules of Court) and if the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make the appropriate order for the taking of the deposition (Sec. 4, Rule 24, Rules of Court).

3. The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. 6, Rule 24, Rules of Court). Depositions pending appeal

1. If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefore has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in said court (Sec. 7, Rule 24, Rules of Court).

2. The party who desires to perpetuate the testimony may make a motion in said court for leave to take the depositions. The notice and service to be made shall be made in the same manner as if the action is pending (Sec. 7, Rule 24, Rules of Court).

3. The motion shall state the (a) names and addresses of the persons to be examined; (b) the substance of the testimony he expects to elicit from each of the persons to be examined; and (c) the reason for perpetuating their testimony (Sec. 7, Rule 24, Rules of Court).

4. The court shall allow the depositions if it finds that the perpetuation of the testimony is proper to avoid a failure


or delay of justice. The depositions may be taken and used in the same manner and under the same conditions prescribed for depositions taken in pending actions (Sec. 7, Rule 24, Rules of Court).

II. Interrogatories to Parties (Rule 25)

Purpose of interrogatories to parties 1. This mode of discovery is availed of by a party to the

action for the purpose of eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25, Rules of Court).

2. Existing rules consider this mode of discovery as im-portant because within one day from receipt of the complaint, the rule mandates not only the preparation of the summons but also the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26. The parties however, may use at their discretion, depositions under Rule 23 or other measures under Rule 27 and 29 within five (5) days from the filing of the answer (A.M. No. 03-1-09-SC, IA, 1,1.1,1.2).

Distinguished from a bill of particulars A bill of particulars is directed to a pleading and is designed to

seek for a more definite statement or for particulars of any matter not averred with sufficient definiteness in a pleading. (Sec. 1, Rule 12, Rules of Court). Interrogatories to parties are not directed against a particular pleading. Instead, they seek the disclosure of all material and relevant facts from a party (Sec. 1, Rule 25, Rules of Court).

Distinguished from written interrogatories in a deposition Written interrogatories in a deposition are not served upon the

adverse party directly. They are instead delivered to the officer designated in the notice (Sec. 26, Rule 23, Rules of Court). The service of written interrogatories is a mode of deposition separate and distinct from interrogatories to par


ties (Sec. 1, Rule 23, Rules of Court). Interrogatories to parties are served directly upon the adverse party (Sec. 1, Rule 25, Rules of Court).

Procedure 1. The mode of discovery is availed of by filing and serving

upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, the written interrogatories shall be answered by any of its officers competent to testify in its behalf (Sec. 1, Rule 25, Rules of Court).

2. 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).

3. The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof. This period may, upon motion and for good cause shown, be extended or shortened by the court (Sec. 2, Rule 25, Rules of Court).

4. The party against whom it is directed may make objections to the interrogatories. If he does so, said objections shall be presented to the court within ten (10) days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories until the objections are resolved (Sec. 3, 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 deposition pending appeal, unless allowed by the court or to prevent a failure of justice (Sec. 6, Rule 25, Rules of Court).


III. Admission by Adverse Party (Rule 26) Purpose of admission by adverse party

The purpose of this mode of discovery is to allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to:

(a) admit the genuineness of any material and relevant document described in and exhibited with the request; or

(b) admit the truth of any material and relevant matter of fact set forth in the request (Sec. 1, Rule 26, Rules of Court).

When request is made A party may file and serve the written request at any time

after issues have been joined (Sec. 1, Rule 26, Rules of Court).

Effect of not filing a written request for admission 1. As a consequence of the failure to avail of this mode of

discovery, the party who fails to file and serve the request shall not be permitted to present evidence on facts that are material and relevant and which are, or ought to be within the personal knowledge of the other party, unless otherwise allowed by the court for good cause shown and to prevent a failure of justice (Sec. 5, Rule 26, Rules of Court).

2. Note too that within one day from receipt of the complaint, the rule mandates not only the preparation of the summons but also the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26. The parties, however, may use at their discretion, depositions under Rule 23 or other measures under Rules 27 and 29 within five (5) days from the filing of the answer (A.M. No. 03-1-09- SC, IA, 1,1.1, 1.2, July 13, 2004).


Effect of failure to file and serve a sworn statement of denial 1. It is advisable for the party to whom the written request

is directed to file and serve upon the party requesting the admission a sworn statement either (a) specifically denying the matters of which admission is requested, or (b) if he does not deny the same, to set forth in detail the reasons why he cannot truthfully admit or deny those matters. This sworn statement shall be filed and served within the period designated in the request but which shall not be less than fifteen (15) days from the service of such request, or within such further time as the court may allow (Sec. 2, Rule 26, Rules of Court).

2. If the party to whom the written request for admission does not file the required sworn statement, each of the matters of which an admission is requested shall be deemed admitted (Sec. 2, Rule 26, Rules of Court).

Effect of admission Any admission made by a party as a consequence of the failure

to comply with the request is only for the purpose of the pending action and shall not be deemed an admission for any other purpose. Likewise, the admission cannot be used against the admitting party in any other proceeding (Sec. 3, Rule 26, Rules of Court).

Deferment of compliance To avoid the implied admission, the party requested may have

the compliance of the filing and service of the sworn statement deferred. This deferment may be effected by the filing with the court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court (Sec. 2, par. 2, Rule 26, Rules of Court).

Withdrawal of admission Admissions made under this mode of discovery, whether

express or implied are not final and irrevocable. The court may allow the party making the admission to withdraw or amend


the admission upon such terms as may be just (Sec. 4, Rule 26, Rules of Court). To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission.

IV. Production or Inspection of Documents or Things (Rule 27)

Purpose 1. The purpose of this mode of discovery is to allow a

party to seek an order from the court in which the action is pending to:

(a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control;

(b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon (Sec. 1, Rule 27, Rules of Court)

Filing of a motion; order of the court 1. A motion must be filed by the party seeking the pro-

duction or inspection of documents and things and the motion must show good cause supporting the same (Sec. 1, Rule 27, Rules of Court).

2. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just (Sec. 1, Rule 27, Rules of Court).


Privileged documents 1. Rule 27 provides that the documents, papers, books,

accounts, letters, photographs, objects or tangible things that may be produced and inspected should not be privileged. The documents must not be privileged against disclosure. On the ground of public policy, the rules providing for production and inspection of books and papers do not authorize the production or inspection of privileged matter; that is, books and papers which, because of their confidential and privileged character, could not be received in evidence. Such a condition is in addition to the requisite that the items be designated and must constitute or contain evidence material to any matter involved in the action and which are in the party’s possession, custody or control (Sec. 1, Rule 27, Rules of Court).

2. Section 24 of Rule 130 draws the types of disqualification by reason of privileged communication, to wit: (a) communication between husband and wife; (b) communication between attorney and client; (c) communication between physician and patient; (d) communication between priest and penitent; and (e) public officers and public interest. There are, however, other privileged matters that are not mentioned by Rule 130. Among them are the following: (a) editors may not be compelled to disclose the source of published news; (b) voters may not be compelled to disclose for whom they voted; (c) trade secrets; (d) information contained in tax census returns; and (d) bank deposits (Air Philippines Corporation v. Pennswell, Inc., 540 SCRA 215, G.R. No. 172835, December 13, 2007).

V. Physical and Mental Examination of Persons (Rule 28)

Applicability This mode of discovery applies to an action in which the

mental or physical condition of a party is in controversy (Sec. 1, Rule 28, Rules of Court). Examples of this action would be:

(a) An action for annulment of a contract where the ground relied upon is insanity.


(b) A petition for guardianship of a person alleged to be insane;

(c) An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.

Procedure 1. A motion must showing good cause for the examination,

with notice to the other parties as well aside from the party to be examined. The motion shall likewise specify the time, place, manner, conditions and scope of the examination and by the person or persons by whom it is to be made (Sec. 2, Rule 28, Rules of Court). The motion is to be filed with the court where the action is pending (Sec. 1, Rule 28, Rules of Court).

2. The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition (Sec. 3, Rule 28, Rules of Court).

If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony if offered at the trial (Sec. 3, Rule 28, Rules of Court).

Waiver of privilege By requesting and obtaining a report of the examination or by

taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may


thereafter examine him in respect of the same mental or physical examination (Sec. 4, Rule 28, Rules of Court).

VI. Refusal to Comply with the Modes of Discovery (Rule 29)

The sanctions for refusal to comply with the modes of discovery may be summarized as follows:

A. Refusal to answer any question upon oral examination

(a) The court may upon proper application, compel a deponent who refuses to answer an oral examination. The same applies to a witness who refuses to answer an interrogatory submitted (Sec. 1, Rule 29, Rules of Court). A refusal to answer after being directed by the court may be considered as a contempt of court (Sec. 2, Rule 29, Rules of Court). The court may order the deponent, a party, or the counsel advising the refusal, or both of them, to pay the proponent the amount of reasonable expenses incurred in obtaining the order, including attorney’s fees (Sec. 1, Rule 29, Rules of Court).

(b) If the application for an order to compel a deponent to answer is denied because of the absence of a substantial justification, the court may require the proponent or the counsel advising the application, or both of them, to pay to the refusing party or deponent the amount of reasonable expenses incurred in opposing the application, including attorney’s fees (Sec. 1, Rule 29, Rules of Court).

B. Refusal to answer designated or particular questions or refusal to produce documents or things or to submit to physical or mental examination

(a) The court may order that the matters regarding which the questions were asked shall be taken as established for purposes of the action in accordance


with the claim of the party obtaining them (Sec. 3[a], Rule 29, Rules of Court).

(b) The court may issue an order refusing to allow the disobedient party to refuse or support designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition (Sec. 3[b], Rule 29, Rules of Court).

(c) The court may issue an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party (Sec. 3[c], Rule 29, Rules of Court).

(d) The court may direct the arrest of any party or agent of a party for disobeying any of the orders of the court, except an order to submit to a physical or mental examination (Sec. 3[d], Rule 29, Rules of Court).

C. Refusal to be sworn A refusal of a party to be sworn after being directed by the

court may be considered as contempt of court (Sec. 2, Rule 29, Rules of Court).

D. Refusal to admit If a party refuses to admit the genuineness of any document or

the truth of any matter of fact and serves a sworn denial thereof and if the other party later on proves the genuineness of the document or the truth of such matter of fact, the court upon proper application, may order the former to pay the reasonable expenses in making such proof, including attorney’s fees (Sec. 4, Rule 29, Rules of Court).

E. Failure to attend depositions or to serve answers to interrogatories (Bar 2010)

1. The court may (a) strike out all or any part of the pleading of that party, or dismiss the action or proceeding or


any part thereof, or (b) enter a judgment by default against that party, and in its discretion, (c) order him to pay reasonable expenses incurred by the other, including attorney’s fees (Sec. 5, Rule 29, Rules of Court).

2. The consequences under Sec. 5 of Rule 29 will apply if a party refuses to answer the whole set of written interrogatories, and not just a particular question. Where the party upon whom the written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order, Sec. 3(c) of Rule 29 will apply (Zepeda v. China Banking Corporation, G.R. No. 172175, October 9, 2006).

The following are the consequences provided for in Sec. 3(c) of Rule 29:

(a) The court may issue an order striking out pleadings or parts thereof;

(b) The court may issue an order staying further proceedings until the order is obeyed;

(c) The court may issue an order dismissing the action or proceeding or any part thereof; or

(d) The court may issue an order rendering a judgment by default against the disobedient party.

3. The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice. For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the circumstances of each case and to make their considered determination thereafter (Zepeda v. China Banking Corporation, supra).


C. ALTERNATIVE DISPUTE RESOLUTION

Institutionalization of ADR 1. Republic Act No. 9285, otherwise known as The Al-

ternative Dispute Resolution Act of 2004 (April 2, 2004) insti-tutionalized the use of alternative modes of dispute resolution in the Philippines.

2. R.A. 9285 however, is not to be interpreted to repeal, amend or modify the jurisdiction of the Katarungan Pambarangay under Republic Act No. 7160, otherwise known as the Local Government Code of 1991 (Sec. 53, R.A. 9285).

Declaration of policy of the Act Sec. 2 of Republic Act No. 9285,

“x x x it is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist active private sector participation in the settlement of disputes through ADR. This Act shall be without prejudice to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation, arbi-tration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time.

Alternative Dispute Resolution System This refers to any process or procedure used to resolve a

dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as


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defined in this Act, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, minitrial, or any combination thereof (Sec. 3[a], RA. 9285).

Commercial arbitration This refers to an arbitration which covers matters arising from

all relationships of a commercial nature, whether contractual or not (Sec. 3[g], RA. 9285).

New York Convention This means the United Nations Convention on the Recognition

and Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine Senate under Resolution No. 71 (Sec. 3[w], RA. 9285).

Convention State; convention award A Convention State means a State that is a member of the

New York Convention (Sec. 3[j], RA. 9285). A convention award means a foreign arbitral award made in a Convention State (Sec. 3[i], RA. 9285).

Non-convention State; non-convention award A Non-Convention State means a State that is not a member

of the New York Convention (Sec. 3[y], RA. 9285). A non-convention award means a foreign arbitral award made in a State which is not a Convention State (Sec. 3[x], RA. 9285).

Court-annexed mediation This refers to any mediation process conducted under the

auspices of the court, after such court has acquired jurisdiction of the dispute (Sec. 3[l], RA. 9285).

Court-referred mediation This means any mediation process ordered by a court to be

conducted in accordance with the Agreement of the Parties


when an action is prematurely commenced in violation of such agreement (Sec. 3[m], R.A. 9285).

Cases in which the ADR law does not apply The provisions of R.A. 9285 shall not apply to resolution or

settlement of the following: (a) labor disputes covered by Presidential Decree No.

442, otherwise known as the Labor Code of the Philippines, as amended and its Implementing Rules and Regulations;

(b) the civil status of persons;

(c) the validity of a marriage;

(d) any ground for legal separation;

(e) the jurisdiction of courts;

(f) future legitime;

(g) criminal liability; and (h) those which by law cannot be compromised (Sec. 6,

RA. 9285).

Voluntary mediation; confidentiality 1. One form of alternative dispute resolution (ADR) is

voluntary mediation, whether ad hoc or institutional, other than court-annexed mediation. The term ‘mediation’ shall include conciliation (Sec. 7, R.A. 9285).

2. The law requires that in applying and construing the provisions on mediation, consideration must be given to the need to promote candor of parties and mediators through confidentiality of the mediation process, the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with the principles of integrity of determination by the parties, and the policy that the decision-making authority in the mediation process rests with the parties (Sec. 8, RA. 9285).


3. Unless confidentially is waived in accordance with the law (Sec. 10, RA. 9285), or except in cases provided for by law (Sec. 11, RA. 9285), information obtained through mediation proceedings shall be privileged and confidential. A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication. Besides, as a rule, confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasi-judicial. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation (Sec. 9, RA. 9285).

4. The law likewise provides that the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the mediator or mediators; (3) the counsel for the parties; (4) the non-party participants; (5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession (Sec. 9, RA. 9285).

5. The protection of the law shall continue to apply even of a mediator is found to have failed to act impartially and a mediator may not be called to testify to provide information gathered in mediation. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney's fees and related expenses (Sec. 9, RA. 9285).

6. A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their respective counsel, if any, and by the mediator. Adequate provisions shall be made for the contingency of breach to avoid conflicting interpretations of the agreement. The parties and their respective counsels, if any, shall sign the settlement agreement. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them (Sec. 17, RA. 9285).


Other forms of ADR; international commercial arbitration 1. A dispute may be referred to other forms of alternative

dispute resolution. Sec. 18 of the law provides that “The parties may agree to refer one or more or all issues arising in a dispute or during its pendency to other forms of ADR such as but not limited to (a) the evaluation of a third person or (b) a mini-trial, (c) mediation-arbitration, or a combination thereof.”

2. “R.A. 9285 provides for international commercial arbitration following the Model Law on International Commercial Arbitration (the “Model Law”) adopted by the United Nations Commission on International Trade Law on June 21, 1985 (United Nations Document A/40/17) and recommended approved on December 11,1985 x x x” (Sec. 19, R.A. 9285).

3. An arbitration is “commercial” if it covers matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of transactions: any trade transaction for the supply or exchange of goods or services; distribution agreements; construction of works; commercial representation or agency; factoring; leasing; consulting; engineering; licensing; investment; financing; banking; insurance; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road (Sec. 21, R.A. 9285).

4. In international arbitration conducted in the Philippines, a party may be represented by any person of his choice. Provided, that such representative, unless admitted to the practice of law in the Philippines, shall not be authorized to appear as counsel in any Philippine court, or any other quasijudicial body whether or not such appearance is in relation to the arbitration in which he appears (Sec. 22, R.A. 9285).

Confidentiality provision The arbitration proceedings, including the records, evidence

and the arbitral award, shall be considered confidential and shall not be published except (1) with the consent of the


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parties, or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein. Provided, however, that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes, developments, research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof (Sec. 23, RA. 9285).

Referral to arbitration A court before which an action is brought in a matter which is

the subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed/Sec. 24, R.A. 9285).

Domestic arbitration; construction disputes 1. Domestic arbitration shall continue to be governed by

Republic Act No. 876, otherwise known as “The Arbitration Law” as amended by Chapter 5 of R. A. 9285. The term “domestic arbitration” as used herein shall mean an arbitration that is not international (Sec. 32, RA. 9285).

2. The arbitration of construction disputes shall be governed by Executive Order No. 1008, otherwise known as the Constitution Industry Arbitration Law (Sec. 34, RA. 9285). Construction disputes which fall within the original and exclusive jurisdiction of the Construction Industry Arbitration Commission (the “Commission”) shall include those between or among parties to, or who are otherwise bound by, an arbitration agreement, directly or by reference whether such parties are project owner, contractor, subcontractor, quantity surveyor, bondsman or issuer of an insurance policy in a construction project (Sec. 35, RA. 9285).


Interim reliefs or provisional remedies 1. The law allows interim reliefs or provisional remedies.

Under Sec. 28 of R.A. 9285, it is declared that it is not incompatible with an arbitration agreement for a party to request, before constitution of the tribunal, from a Court, an interim measure of protection and for the Court to grant such measure. After constitution of the arbitral tribunal and during arbitral proceedings, a request for an interim measure of protection or modification thereof, may be made with the arbitral tribunal or to the extent that the arbitral tribunal has no power to act or is unable to act effectively, the request may be made with the Court.

2. Sec. 28 of R.A. 9285 also provides for the following rules to be observed in connection with the interim or provisional reliefs available:

(1) Any party may request that provision relief be granted against the adverse party:

(2) Such relief may be granted: (i) to prevent irreparable loss or injury; (ii) to provide security for the performance of any

obligation; (iii) to produce or preserve any evidence; or (iv) to compel any other appropriate act or

omission. (3) The order granting provisional relief may be

conditioned upon the provision of security or any act or omission specified in the order.

(4) Interim or provisional relief is requested by written application transmitted by reasonable means to the Court or arbitral tribunal as the case may be and the party against whom the relief is sought, describing in appropriate detail the precise relief, the party against whom the relief is requested, the grounds for the relief, and evidence supporting the request.


485

(5) The order shall be binding upon the parties. (6) Either party may apply with the Court for as-

sistance in Implementing or enforcing an interim measure ordered by an arbitral tribunal.

(7) A party who does not comply with the order shall be liable for all damages resulting from noncompliance, including all expenses, and reasonable attorney’s fees, paid in obtaining the order’s judicial enforcement.

Confirmation and review of domestic arbitral awards 1. The confirmation of a domestic arbitral award shall be

governed by Sec. 23 of R.A. 876 (Sec. 40, R.A. 9285). Under Sec. 23 of R.A. 876, “At any time within one month after the award is made, any party to the controversy which was arbitrated may apply to the court having jurisdiction, xxx for an order confirming the award; and thereupon the court must grant such order unless the award is vacated, modified or corrected, as prescribed herein. Notice of such motion must be served upon the adverse party or his attorney as prescribed by law for the service of such notice upon an attorney in action in the same court.”

A domestic arbitral award when confirmed shall be enforced in the same manner as final and executory decisions of the Regional Trial Court (Sec. 40, R.A. 9285).

The confirmation of a domestic award shall be made by the Regional Trial Court in accordance with the Rules of Procedure to be promulgated by the Supreme Court (Sec. 40, R.A. 9285).

2. A CIAC (Construction Industry Arbitration Commission) arbitral award need not be confirmed by the Regional Trial Court to be executory as provided under E.O. No. 1008 (Sec. 40, RA. 9285).

3. A party to a domestic arbitration may question the arbitral award with the appropriate Regional Trial Court in accordance with the rules of procedure to be promulgated by the Supreme Court only on those grounds enumerated in Sec.


25 of R.A. 876. Any other ground raised against a domestic arbitral award shall be disregarded by the Regional Trial Court (See. 41, R.A. 9285).

Recognition and enforcement of foreign arbitral awards 1. The New York Convention shall govern the recognition

and enforcement of arbitral awards covered by the said Convention (Sec. 42, R.A. 9285).

2. The recognition and enforcement of such arbitral awards shall be filed with the Regional Trial Court in accordance with the rules of procedure to be promulgated by the Supreme Court. Said procedural rules shall provide that the party relying on the award or applying for its enforcement shall file with the court the original or authenticated copy of the award and the arbitration agreement. If the award or agreement is not made in any of the official languages, the party shall supply a duly certified translation thereof into any of such languages (Sec. 42, R.A. 9285).

3. The applicant shall establish that the country in which foreign arbitration award was made is a party to the New York Convention (Sec. 42, R.A. 9285).

4. If the application for rejection or suspension of enforcement of an award has been made, the regional trial court may, if it considers it proper, vacate its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security (Sec. 42, R.A. 9285).

5. The recognition and enforcement of foreign arbitral awards not covered by the New York Convention shall be done in accordance with procedural rules to be promulgated by the Supreme Court. The Court may, on grounds of comity and reciprocity, recognize and enforce a non-convention award as a convention award (Sec. 43, R.A. 9285; See p. 499, this Chapter).

Venue and jurisdiction; notice 1. Proceedings for recognition and enforcement of an

arbitration agreement or for vacation, setting aside, correction


or modification of an arbitral award, and any application with a court for arbitration assistance and supervision shall be deemed as special proceedings and shall be filed with the Regional Trial Court (i) where arbitration proceedings are conducted; (ii) where the asset to be attached or levied upon, or the act to be enjoined is located; (iii) where any of the parties to the dispute resides or has his place of business; or (iv) in the National Judicial Capital Region, at the option of the applicant (Sec. 47, R.A. 9285).

2. In a special proceeding for recognition and enforcement of an arbitral award, the Court shall send notice to the parties at their address of record in the arbitration, or if any party cannot be served notice at such address, at such party’s last known address. The notice shall be sent at least fifteen (15) days before the date set for the initial hearing of the application (Sec. 48, R.A. 9285).

Rejection of a foreign arbitral award A party to a foreign arbitration proceeding may oppose an

application for recognition and enforcement of the arbitral award in accordance with the procedural rules to be promulgated by the Supreme Court only on those grounds enumerated under Article V of the New York Convention. Any other ground raised shall be disregarded by the Regional Trial Court (Sec. 45, R.A. 9285; See p. 500, this Chapter).

Appeal from court decisions on arbitral awards 1. A decision of the Regional Trial Court confirming,

vacating, setting aside, modifying or correcting an arbitral award may be appealed to the Court of Appeals in accordance with the rules of procedure to be promulgated by the Supreme Court (Sec. 46, R.A. 9285; See p. 503, this Chapter).

2. The losing party who appeals from the judgment of the court confirming an arbitral award shall required by the appellant court to post counterbond executed in favor of the prevailing party equal to the amount of the award in accordance with the rules to be promulgated by the Supreme Court (Sec. 46, R.A. 9285).


Foreign arbitral awards are not foreign judgments 1. Sec. 44 of R.A. 9285 mentions foreign arbitral awards

confirmed either by the court of a foreign country or by the Regional Trial Court.

2. A foreign arbitral award when confirmed by a court of a foreign country, shall be recognized and enforced as a foreign arbitral award and not a judgment of a foreign court (Sec. 44, RA. 9285).

3. A foreign arbitral award, when confirmed by the Regional Trial Court, shall be enforced as a foreign arbitral award and not as a judgment of a foreign court (Sec. 44, RA. 9285). A foreign arbitral award, when confirmed by the Regional Trial Court, shall be enforced in the same manner as final and executory decisions of courts of law of the Philippines (Sec. 44, RA. 9285).

Office for Alternative Dispute Resolution 1. The Office for Alternative Dispute Resolution is an

attached agency to the Department of Justice (DOJ) which shall have a Secretariat to be headed by an executive director. The executive director shall be appointed by the President of the Philippines.

2. The objectives of the office are: (a) to promote, develop and expand the use of ADR in

the private and public sectors; and (b) to assist the government to monitor, study and

evaluate the use by the public and the private sector of ADR, and recommend to Congress needful statutory changes to develop, strengthen and improve ADR practices in accordance with world standards (Sec. 49, RA. 9285).

3. The Office for Alternative Dispute Resolution shall have the following powers and functions:

(a) To formulate standards for the training of the ADR practitioners and service providers;


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(b) To certify that such ADR practitioners and ADR service providers have undergone the professional training provided by the office;

(c) To coordinate the development, implementation, monitoring, and evaluation of government ADR programs;

(d) To charge fees for their services; and (e) To perform such acts as may be necessary to carry

into effect the provisions of the law (Sec. 50, RA. 9285).

D. SELECTED FEATURES OF THE SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION

(SPECIAL ADR RULES A.M. No. 07-11-08-SC, effective October 30,2009)

Subject matter and governing rules The Special Rules of Court on Alternative Dispute Resolution

(the “Special ADR Rules”) shall apply to and govern the following cases:

a. Relief on the issue of Existence, Validity, or Enforce-ability of the Arbitration Agreement;

b. Referral to Alternative Dispute Resolution (“ADR”); c. Interim Measures of Protection; d. Appointment of Arbitrator; e. Challenge to Appointment of Arbitrator; f. Termination of Mandate of Arbitrator; g. Assistance in Taking Evidence; h. Confirmation, Correction or Vacation of Award in

Domestic Arbitration; i. Recognition and Enforcement or Setting Aside of an

Award in International Commercial Arbitration; j. Recognition and Enforcement of a Foreign Arbitral Award;


k. Confidentiality/Protective Orders; and 1. Deposit and Enforcement of Mediated Settlement

Agreements (Rule 1.1, Special ADR Rules).

Nature of the proceedings 1. All proceedings under the Special ADR Rules are special

proceedings (Rule 1.2, Special ADR Rules). 2. The proceedings are summary in nature (Rule 1.3,

Special ADR Rules) except the following not enumerated as summary:

(a) confirmation, correction or vacation of award in domestic arbitration;

(b) recognition and enforcement or setting aside of an award in international commercial arbitration; and

(c) recognition and enforcement of a foreign arbitral award (Rule 1.1, Special ADR Rules).

Some important features 1. Verification and submissions. — Any pleading, motion,

opposition, comment, defense or claim filed under the Special ADR Rules by the proper party shall be supported by verified statements that the affiant has read the same and that the factual allegations therein are true and correct of his own personal knowledge or based on authentic records and shall contain as annexes the supporting documents (Rule 1.4, Special ADR Rules).

2. Certification Against Forum Shopping. — A Certifi-cation Against Forum Shopping is one made under oath made by the petitioner or movant: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar ac


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tion or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforementioned petition or motion has been filed.

A Certification Against Forum Shopping shall be appended to all initiatory pleadings except a Motion to Refer the Dispute to Alternative Dispute Resolution (Rule 1.5, Special ADR Rules).

3. No summons. — In cases covered by the Special ADR Rules, a court acquires authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a copy of the petition and the notice of hearing.

a. Proof of service. — A proof of service of the petition and notice of hearing upon respondent shall be made in writing by the server and shall set forth the manner, place and date of service.

b. Burden of proof. — The burden of showing that a copy of the petition and the notice of hearing were served on the respondent rests on the petitioner.

The technical rules on service of summons do not apply to the proceedings under the Special ADR Rules (Rule 1.9, Special ADR Rules).

Prohibited pleadings, motions or petitions Under Rule 1.6 of the Special ADR Rules, the following

pleadings, motions, or petitions shall not be allowed in the cases governed by the Special ADR Rules and shall not be accepted for filing by the Clerk of Court:

a. Motion to dismiss;

b. Motion for bill of particulars;

c. Motion for new trial or for reopening of trial;

d. Petition for relief from judgment; e. Motion for extension, except in cases where an ex

parte temporary order of protection has been issued;


f. Rejoinder to reply; g. Motion to declare a party in default; and h. Any other pleading specifically disallowed under any

provision of the Special ADR Rules. The court shall motu proprio order a pleading/motion that it

has determined to be dilatory in nature be expunged from the records.

Judicial relief involving the issue of existence, validity and enforcement of the arbitration agreement

1. he judicial relief whether resorted to before or after commencement of arbitration, shall apply only when the place of arbitration is in the Philippines (Rule 3.1, Special ADR Rules).

2. Any party to an arbitration agreement may petition the appropriate court to determine any question concerning the existence, validity and enforceability of such arbitration agreement serving a copy thereof on the respondent (Rule 3.2, Special ADR Rules). The petition may be filed at any time prior to the commencement of arbitration (Rule 3.3, Special ADR Rules).

3. A petition questioning the existence, validity and enforceability of an arbitration agreement may be filed before the Regional Trial Court of the place where any of the petitioners or respondents has his principal place of business or residence (Rule 3.4, Special ADR Rules).

Judicial relief after arbitration commences 1. After the arbitration commences, any party to arbitration

may petition the appropriate court for judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding or declining its jurisdiction. Should the ruling of the arbitral tribunal declining its jurisdiction be reversed by the court, the parties shall be free to replace the arbitrators or any one of them in accordance with the rules


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that were applicable for the appointment of arbitrator sought to be replaced (Rule 3.12, Special ADR Rules).

2. The petition may be filed within thirty (30) days after having received notice of that ruling by the arbitral tribunal (Rule 3.13, Special ADR Rules) before the Regional Trial Court of the place where arbitration is taking place, or where any of the petitioners or respondents has his principal place of business or residence (Rule 3.14, Special ADR Rules).

3. The petition may be granted when the court finds that the arbitration agreement is invalid, inexistent or unenforceable as a result of which the arbitral tribunal has no jurisdiction to resolve the dispute (Rule 3.15, Special ADR Rules).

4. The court shall not enjoin the arbitration proceedings during the pendency of the petition. Judicial recourse to the court shall not prevent the arbitral tribunal from continuing the proceedings and rendering its award (Rule 3.18, Special ADR Rules).

Confirmation, correction or vacation of award in domestic arbitration

1. Who may request confirmation, correction or vacation- — Any party to a domestic arbitration may petition the court to confirm, correct or vacate a domestic arbitral award (Rule 11.1, Special ADR Rules).

2. When to request confirmation, correction /modification or vacation. —

a. Confirmation. — At any time after the lapse of thirty (30) days from receipt by the petitioner of the arbitral award, he may petition the court to confirm that award.

b. Correction I Modification. — Not later than thirty (30) days from receipt of the arbitral award, a party may petition the court to correct/modify that award.

c. Vacation. — Not later than thirty (30) days from receipt of the arbitral award, a party may petition the court to vacate that award.


d. A petition to vacate the arbitral award may be filed, in opposition to a petition to confirm the arbitral award, not later than thirty (30) days from receipt of the award by the petitioner. A petition to vacate the arbitral award filed beyond the reglementary period shall be dismissed.

e. A petition to confirm the arbitral award may be filed, in opposition to a petition to vacate the arbitral award, at any time after the petition to vacate such arbitral award is filed. The dismissal of the petition to vacate the arbitral award for having been filed beyond the reglementary period shall not result in the dismissal of the petition for the confirmation of such arbitral award.

f. The filing of a petition to confirm an arbitral award shall not authorize the filing of a belated petition to vacate or set aside such award in opposition thereto.

g. A petition to correct an arbitral award may be included as part of a petition to confirm the arbitral award or as a petition to confirm that award (Rule 11.2, Special ADR Rules).

3. The petition for confirmation, correction/modification or vacation of a domestic arbitral award may be filed with Regional Trial Court having jurisdiction over the place in which one of the parties is doing business, where any of the parties reside or where arbitration proceedings were conducted (Rule 11.3, Special ADR Rules).

4. The arbitral award may be vacated on the following grounds:

a. The arbitral award was procured through corruption, fraud or other undue means;

b. There was evident partiality or corruption in the arbitral tribunal or any of its members;

c. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone


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a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy;

d. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or

e. The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and definite award upon the subject matter submitted to them was not made.

The award may also be vacated on any or all of the following grounds:

a. The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or

b. A party to arbitration is a minor or a person judicially declared to be incompetent.

The petition to vacate an arbitral award on the ground that the party to arbitration is a minor or a person judicially declared to be incompetent shall be filed only on behalf of the minor or incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a submission or agreement with such minor or incompetent, or (b) the submission to arbitration was made by a guardian or guardian ad litem who was not authorized to do so by a competent court.

In deciding the petition to vacate the arbitral award, the court shall disregard any other ground than those enumerated above (Rule 11.4, Special ADR Rules).

5. The Court may correct/modify or order the arbitral tribunal to correct/modify the arbitral award in the following cases:

a. Where there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

b. Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted;


c. Where the arbitrators have omitted to resolve an issue submitted to them for resolution; or

d. Where the award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioner’s report, the defect could have been amended or disregarded by the Court (Rule 11. 4, Special ADR Rules).

6. Unless a ground to vacate an arbitral award under Rule 11.5 above is fully established, the court shall confirm the award.

An arbitral award shall enjoy the presumption that it was made and released in due course of arbitration and is subject to confirmation by the court (Rule 11.9, Special ADR Rules).

In resolving the petition or petition in opposition thereto in accordance with these Special ADR Rides, the court shall either confirm or vacate the arbitral award. The court shall not disturb the arbitral tribunal’s determination of facts and/ or interpretation of law (Rule 11.9, Special ADR Rules).

Recognition and enforcement or setting aside of an international commercial arbitration award

1. Any party to an international commercial arbitration in the Philippines may petition the proper court to recognize and enforce or set aside an arbitral award (Rule 12.1, Special ADR Rules).

2. The petition for enforcement and recognition of an arbitral award may be filed anytime from receipt of the award. If, however, a timely petition to set aside an arbitral award is filed, the opposing party must file therein and in opposition thereto the petition for recognition and enforcement of the same award within the period for filing an opposition (Rule 12.2, Special ADR Rules).

3. The petition to set aside an arbitral award may only be filed within three (3) months from the time the petitioner receives a copy thereof. If a timely request is made with the arbitral tribunal for correction, interpretation or additional


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award, the three (3) month period shall be counted from the time the petitioner receives the resolution by the arbitral tribunal of that request (Rule 12.2, Special ADR Rules).

4. A petition to set aside can no longer be filed after the lapse of the three (3) month period. The dismissal of a petition to set aside an arbitral award for being time-barred shall not automatically result in the approval of the petition filed therein and in opposition thereto for recognition and enforcement of the same award. Failure to file a petition to set aside shall preclude a party from raising grounds to resist enforcement of the award (Rule 12.2, Special ADR Rules).

5. As to the venue of the petition, a petition to recognize and enforce or set aside an arbitral award may, at the option of the petitioner, be filed with the Regional Trial Court: (a) where arbitration proceedings were conducted; (b) where any of the assets to be attached or levied upon is located; (c) where the act to be enjoined will be or is being performed; (d) where any of the parties to arbitration resides or has its place of business; or (e) in the National Capital Judicial Region (Rule 12.3, Special ADR Rules).

6. The court may set aside or refuse the enforcement of the arbitral award only if:

a. The party making the application furnishes proof that: (i) A party to the arbitration agreement was under

some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; or

(ii) The party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the sub


mission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside or only that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law.

b. The court finds that: (i) The subject matter of the dispute is not capable of

settlement by arbitration under the law of the Philippines; or

(ii) The recognition or enforcement of the award would be contrary to public policy.

In deciding the petition, the Court shall disregard any other ground to set aside or enforce the arbitral award other than those enumerated above.

The petition to set aside or a pleading resisting the enforcement of an arbitral award on the ground that a party was a minor or an incompetent shall be filed only on behalf of the minor or incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a submission or agreement with such minor or incompetent, or (b) the submission to arbitration was made by a guardian or guardian ad litem who was not authorized to do so by a competent court (Rule 12.4, Special ADR Rules).


7. There is an exclusive recourse against an arbitral award. Under Rule 12.5 of the Special ADR Rules, recourse to a court against an arbitral award shall be made only through a petition to set aside the arbitral award and on grounds prescribed by the law that governs international commercial arbitration. Any other recourse from the arbitral award, such as by appeal or petition for review or petition for certiorari or otherwise, shall be dismissed by the court.

Note: Please refer to Rule 19.26 when a petition for certiorari is allowed.

8. The application to recognize and enforce or set aside an arbitral award, whether made through a petition to recognize and enforce or to set aside or as a petition to set aside the award in opposition thereto, or through a petition to set aside or petition to recognize and enforce in opposition thereto, shall be verified by a person who has personal knowledge of the facts stated therein.

When a petition to recognize and enforce an arbitral award is pending, the application to set it aside, if not yet time-barred, shall be made through a petition to set aside the same award in the same proceedings.

When a timely petition to set aside an arbitral award is filed, the opposing party may file a petition for recognition and enforcement of the same award in opposition thereto (Rule 12.6, Special ADR Rules).

Recognition and enforcement of a foreign arbitral award 1. Any party to a foreign arbitration may petition the court

to recognize and enforce a foreign arbitral award (Rule 13.1, Special ADR Rules) at any time after receipt of a foreign arbitral award, any party to arbitration may petition the proper Regional Trial Court to recognize and enforce such award (Rule 13.2, Special ADR Rules).

2. As to venue, the petition to recognize and enforce a foreign arbitral award shall be filed, at the option of the petitioner, with the Regional Trial Court (a) where the assets


to be attached or levied upon is located, (b) where the act to be enjoined is being performed, (c) in the principal place of business in the Philippines of any of the parties, (d) if any of the parties is an individual, where any of those individuals resides, or (e) in the National Capital Judicial Region (Rule 13.3, Special ADR Rules).

3. The recognition and enforcement of a foreign arbitral award shall be governed by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and this Rule. The court may, upon grounds of comity and reciprocity, recognize and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention as if it were a Convention Award (Rule 13.4, Special ADR Rules).

4. Under Rule 13.4 of the Special ADR Rules, a Philippine court shall not set aside a foreign arbitral award but may refuse it recognition and enforcement on any or all of the following grounds:

a. The party making the application to refuse recognition and enforcement of the award furnishes proof that: (i) A party to the arbitration agreement was under

some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under the law of the country where the award was made; or

(ii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; Provided that, if the decisions on


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matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where arbitration took place; or

(v) The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was made; or

b. The court finds that: (i) The subject matter of the dispute is not capable of

settlement or resolution by arbitration under Philippine law; or

(ii) The recognition or enforcement of the award would be contrary to public policy.

The court shall disregard any ground for opposing the recognition and enforcement of a foreign arbitral award other than those enumerated above.

Rule on judicial review of foreign arbitral award The court can deny recognition and enforcement of a foreign

arbitral award only upon the grounds provided in Article V of the New York Convention, but shall have no power to vacate or set aside a foreign arbitral award (Rule 19.11, Special ADR Rules).

Motion for reconsideration 1. Motion for reconsideration, when allowed. - Under Rule

19.1, Special ADR Rules, a party may ask the Regional Trial Court to reconsider its ruling on the following:


a. That the arbitration agreement is inexistent, invalid or unenforceable pursuant to Rule 3.10 (B);

b. Upholding or reversing the arbitral tribunal’s jurisdiction pursuant to Rule 3.19;

c. Denying a request to refer the parties to arbitration; d. Granting or denying a party an interim measure of

protection; e. Denying a petition for the appointment of an arbitrator; f. Refusing to grant assistance in taking evidence; g. Enjoining or refusing to enjoin a person from divulging

confidential information; h. Confirming, vacating or correcting a domestic arbitral

award; i. Suspending the proceedings to set aside an international

commercial arbitral award and referring the case back to the arbitral tribunal;

j. Setting aside an international commercial arbitral award; k. Dismissing the petition to set aside an international

commercial arbitral award, even if the court does not recognize and/or enforce the same;

1. Recognizing and/or enforcing, or dismissing a petition to recognize and/or enforce an international commercial arbitral award;

m. Declining a request for assistance in taking evidence; n. Adjourning or deferring a ruling on a petition to set aside,

recognize and/or enforce an international commercial arbitral award;

o. Recognizing and/or enforcing a foreign arbitral award, or refusing recognition and/or enforcement of the same; and


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p. Granting or dismissing a petition to enforce a deposited mediated settlement agreement.

No motion for reconsideration shall be allowed from the following rulings of the Regional Trial Court:

a. Aprima facie determination upholding the existence, validity or enforceability of an arbitration agreement pursuant to Rule 3.1(A);

b. An order referring the dispute to arbitration; c. An order appointing an arbitrator; d. Any ruling on the challenge to the appointment of an

arbitrator; e. Any order resolving the issue of the termination of the

mandate of an arbitrator; and f. An order granting assistance in taking evidence. 2. When to move for reconsideration. — A motion for

reconsideration may be filed with the Regional Trial Court within a non-extendible period of fifteen (15) days from receipt of the questioned ruling or order (Rule 19.2, Special ADR Rules).

No appeal or certiorari on the merits of an arbitral award An agreement to refer a dispute to arbitration shall mean that

the arbitral award shall be final and binding. Consequently, a party to an arbitration is precluded from filing an appeal or a petition for certiorari questioning the merits of an arbitral award (Rule 19.7, Special ADR Rules).

When appeal is allowed 1. Under Rule 19.12 ofthe Special ADR Rules, an appeal

to the Court of Appeals through a petition for review under this Special Rule shall only be allowed from the following final orders of the Regional Trial Court:

a. Granting or denying an interim measure of protection;


b. Denying a petition for appointment of an arbitrator; c. Denying a petition for assistance in taking evidence; d. Enjoining or refusing to enjoin a person from divulging

confidential information; e. Confirming, vacating or correcting/modifying a domestic

arbitral award; f. Setting aside an international commercial arbitration

award; g. Dismissing the petition to set aside an international

commercial arbitration award even if the court does not decide to recognize or enforce such award;

h. Recognizing and/or enforcing an international commercial arbitration award;

i. Dismissing a petition to enforce an international commercial arbitration award;

j. Recognizing and/or enforcing a foreign arbitral award; k. Refusing recognition and/or enforcement of a foreign

arbitral award; 1. Granting or dismissing a petition to enforce a deposited

mediated settlement agreement; and m. Reversing the ruling of the arbitral tribunal upholding its

jurisdiction. 2. An appeal under this Rule shall be taken to the Court of

Appeals within the period and in the manner herein provided (Rule 19.13, Special ADR Rules).

3. Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the Regional Trial Court. The original copy of the petition intended for the Court of Appeals shall be marked original by the petitioner (Rule 19.15, Special ADR Rules).

4. The petition for review shall be filed within fifteen (15) days from notice of the decision of the Regional Trial Court


or the denial of the petitioner’s motion for reconsideration (Rule 19.14, Special ADR Rules).

5. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals directs otherwise upon such terms as it may deem just (Rule 19.22, Special ADR Rules).

6. The Court of Appeals shall within fifteen (15) days from receipt of the petition require the party appealing from the decision or a final order of the Regional Trial Court, either confirming or enforcing an arbitral award, or denying a petition to set aside or vacate the arbitral award to post a bond executed in favor of the prevailing party equal to the amount of the award.

Failure of the petitioner to post such bond shall be a ground for the Court of Appeals to dismiss the petition (Rule 19.25, Special ADR Rules).

Prohibition on alternative remedies Where the remedies of appeal and certiorari are specifically

made available to a party under the Special ADR Rules, recourse to one remedy shall preclude recourse to the other (Rule 19.9, Special ADR Rules).

Rule on judicial review on arbitration in the Philippines (not a foreign arbitral award)

1. As a general rule, the court can only vacate or set aside the decision of an arbitral tribunal upon a clear showing that the award suffers from any of the infirmities or grounds for vacating an arbitral award under Section 24 of Republic Act No. 876 or under Rule 34 of the Model Law in a domestic arbitration, or for setting aside an award in an international arbitration under Article 34 of the Model Law, or for such other grounds provided under these Special Rules.

2. If the Regional Trial Court is asked to set aside an arbitral award in a domestic or international arbitration on any ground other than those provided in the Special ADR


Rules, the court shall entertain such ground for the setting aside or non-recognition of the arbitral award only if the same amounts to a violation of public policy.

3. The court shall not set aside or vacate the award of the arbitral tribunal merely on the ground that the arbitral tribunal committed errors of fact, or of law, or of fact and law, as the court cannot substitute its judgment for that of the arbitral tribunal (Rule 19.10, Special ADR Rules).

When a petition for certiorari is allowed 1. Under Rule 19.26 of the Special ADR Rules, a petition for

certiorari may be filed with the Court of Appeals when the Regional Trial Court, in making a ruling under the Special ADR Rules, has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, a party may file a special civil action for certiorari to annul or set aside a ruling of the Regional Trial Court.

2. Specifically, a special civil action for certiorari may be filed against the following orders of the court.

a. Holding that the arbitration agreement is inexistent, invalid or unenforceable;

b. Reversing the arbitral tribunal’s preliminary deter-mination upholding its jurisdiction;

c. Denying the request to refer the dispute to arbitration; d. Granting or refusing an interim relief; e. Denying a petition for the appointment of an arbitrator; f. Confirming, vacating or correcting a domestic arbitral

award; g. Suspending the proceedings to set aside an international

commercial arbitral award and referring the case back to the arbitral tribunal;


h. Allowing a party to enforce an international commercial arbitral award pending appeal;

i. Adjourning or deferring a ruling on whether to set aside, recognize and or enforce an international commercial arbitral award;

j. Allowing a party to enforce a foreign arbitral award pending appeal; and

k. Denying a petition for assistance in taking evidence (Rule 19.26 of the Special ADR Rules).

3. The petition must be filed with the Court of Appeals within fifteen (15) days from notice of the judgment, order or resolution sought to be annulled or set aside. No extension of time to file the petition shall be allowed (Rule 19.28, Special ADR Rules).

4. The arbitral tribunal shall only be a nominal party in the petition for certiorari. As nominal party, the arbitral tribunal shall not be required to submit any pleadings or written submissions to the court. The arbitral tribunal or an arbitrator may, however, submit such pleadings or written submissions if the same serves the interest of justice.

In petitions relating to the recognition and enforcement of a foreign arbitral award, the arbitral tribunal shall not be included even as a nominal party. However, the tribunal may be notified of the proceedings and furnished with court processes (Rule 19.29, Special ADR Rules).

Appeal by certiorari to the Supreme Court Rule 19.36 of the Special ADR Rules declares that a review by

the Supreme Court is not a matter of right, but of sound judicial discretion, which will be granted only for serious and compelling reasons resulting in grave prejudice to the aggrieved party. The following, while neither controlling nor fully measuring the court’s discretion, indicate the serious and compelling, and necessarily, restrictive nature of the grounds that will warrant the exercise of the Supreme Court’s discretionary powers, when the Court of Appeals:


a. Failed to apply the applicable standard or test for judicial review prescribed in these Special ADR Rules in arriving at its decision resulting in substantial prejudice to the aggrieved party;

b. Erred in upholding a final order or decision despite the lack of jurisdiction of the court that rendered such final order or decision;

c. Failed to apply any provision, principle, policy or rule contained in these Special ADR Rules resulting in substantial prejudice to the aggrieved party; and

d. Committed an error so egregious and harmful to a party as to amount to an undeniable excess of jurisdiction.

The mere fact that the petitioner disagrees with the Court of Appeals’ determination of questions of fact, of law or both questions of fact and law, shall not warrant the exercise of the Supreme Court’s discretionary power. The error imputed to the Court of Appeals must be grounded upon any of the above prescribed grounds for review or be closely analogous thereto.

A mere general allegation that the Court of Appeals has committed serious and substantial error or that it has acted with grave abuse of discretion resulting in substantial prejudice to the petitioner without indicating with specificity the nature of such error or abuse of discretion and the serious prejudice suffered by the petitioner on account thereof, shall constitute sufficient ground for the Supreme Court to dismiss outright the petition.

Rule 19.37. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals issued pursuant to these Special ADR Rules may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law, which must be distinctly set forth (Rule 19.37, Special ADR Rules).

— oOo —

Chapter VIII

TRIAL, DEMURRER TO EVIDENCE AND JUDGMENT

A. TRIAL Nature of ‘trial’

1. It is the judicial examination and determination of the issues between the parties to the action (Black’s, 5th Edition, 1348; Citations omitted). Simply put, a trial is the judicial process of investigating and determining the legal controversies between or among the parties. During the trial the parties present their respective evidence of their claims and defenses. Such claims and defenses shall constitute the bases for the judgment of the court.

2. Jurisprudence holds that the period of the trial ter-minates when the judgment begins (Acosta v. People, 5 SCRA 774, 779).

Trial and hearing The terms ‘trial’ and ‘hearing’ are sometimes interchangeably

used. There is, however, a marked difference between these terms. A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It includes the pretrial and the determination of granting or denying a motion (Trocio v. Labayo, 53 SCRA 97,100).

When trial is unnecessary (Bar 1996) A civil case may be adjudicated upon without the need for a

trial in any of the following cases:

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(a) Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34, Rules of Court).

(b) Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35, Rules of Court).

(c) Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18, Rules of Court; Art. 2028, Civil Code of the Philippines).

(d) Where the complaint has been dismissed with prejudice or when the dismissal has the effect of an adjudication on the merits (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, last par., Rule 7, Rules of Court).

(e) Where the case falls under the operation of the Rules on Summary Procedure.

(f) Where, the parties agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If, however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts (Sec. 6, Rule 30, Rules of Court).

Notice of Trial Upon entry of the case in the trial calendar, the clerk of court

shall notify the parties of the date of trial in such manner as to ensure its receipt at least five (5) days before such date (Sec. 1, Rule 30, Rules of Court).

Calendaring of cases In calendaring cases, the clerk of court shall give preference to

habeas corpus cases, election cases, special civil actions and those so required by law to be preferred (Sec. 1, Rule 20, Rules of Court).

CHAPTER VIII TRIAL, DEMURRER TO EVIDENCE AND JUDGMENT

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Session hours 1. The session hours of trial courts shall be from 8:30

A. M. to noon and from 2:00 P.M. to 4:30 P.M. from Monday to Friday. The hours in the morning shall be devoted to the conduct of the trial, while the hours in the afternoon shall be utilized for the conduct of (1) pre-trial conferences; (2) writing of decisions, resolutions, or orders; or (3) the continuation of the trial on the merits, whenever rendered necessary as may be required by the Rules of Court, statute, or circulars in specified cases. This schedule may be modified upon request of the Integrated Bar of the Philippines in multi-sala courts in places where there are few practicing lawyers (Administrative Circular No. 3-39, January 15,1999).

2. Unless the docket of the court requires otherwise, not more than four (4) cases shall be scheduled for trial daily (Administrative Circular No. 3-39, January 15,1999).

Adjournments and postponements The general rule is that a court may adjourn a trial from day

to day, and to any stated time, as the expeditious and convenient transaction of business may require (Sec. 2, Rule 30, Rules of Court).

Limitation on the authority to adjourn 1. The court has no power to adjourn a trial for a period

longer than one month from each adjournment, nor more than three (3) months in all, except when authorized in writing by the Court Administrator (Sec. 2, Rule 30, Rules of Court).

2. A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic v. Sandiganbayan, 301 SCRA 237, 245). A party asking for postponement has absolutely no right that its motion would be granted (Republic v. Sandiganbayan, supra at 246).

Postponement on the ground of illness Trial may be postponed on the ground of illness of either party

or counsel by complying with the following:


(a) A motion for postponement must be filed; (b) The motion must be supported by an affidavit or sworn

certification showing that (1) the presence of the party or counsel at the trial is indispensable, and (2) that the character of his illness is such as to render his non-attendance excusable (Sec. 4, Rule 30, Rules of Court).

Postponement on the ground of absence of evidence (Bar 1975) 1. Trial may be postponed on the ground of absence of

evidence upon compliance with the following: (a) A motion for postponement must be filed; (b) The motion must be supported by an affidavit showing

the (1) materiality or relevancy of the evidence, and (2) that due diligence has been used to procure it (Sec. 3, Rule 30, Rules of Court).

2. If the adverse party admits the facts to be given in evidence, the trial shall not be postponed even if he reserves the right to object to the admissibility of the evidence (Sec. 3, Rule 30, Rules of Court).

Postponement is not a matter of right “As a rule, the grant or denial of a motion for postponement is

addressed to the sound discretion of the court which should always be predicated on the consideration that more than the mere convenience of the courts or of the parties, the ends of justice and fairness should be served thereby. Furthermore, this discretion must be exercised intelligently” (Milwaukee Industries v. Court of Tax Appeals, 636 SCRA 70, 77, November 24, 2010).

Reception of evidence The judge of the court where the case is pending shall

personally receive the evidence to be adduced by the parties.

CHAPTER VIII 513 TRIAL, DEMURRER TO EVIDENCE AND JUDGMENT

Reception of the evidence may nevertheless be delegated to the clerk of court who is a member of the bar, in any of the following cases:

(a) in default hearings; (b) in ex parte hearings; or (c) in any case by written agreement of the parties (Sec.

9, Rule 30, Rules of Court).

Issues in the trial The trial shall be limited to the issues stated in the pretrial

order. This is the general rule unless the court so directs for special reasons (Sec. 5, Rule 30, Rules of Court).

Agreed statement of facts The parties to any action may agree, in writing, upon the facts

involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence but if the parties agree only on some facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 6, Rule 30, Rules of Court).

If the parties have agreed to submit the case for judgment based on the facts agreed upon, a trial need not be conducted because evidence would no longer be presented.

Order of trial; modification of the order of trial 1. Sec. 5 of Rule 30 provides the following order of trial in a

civil case:

x x x

“Subject to the provisions of Sec. 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his complaint;


(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint;

(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;

(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;

(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and

(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any other pleadings.

If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence.”

2. The above order of trial is only the general rule. The order of trial is (a) subject to the provisions of Sec. 2 of Rule 31, and (b) unless for special reasons the court otherwise directs (Sec. 5, Rule 30, Rules of Court).

Thus, the normal order of trial may be modified if the court, in furtherance of convenience and to avoid prejudice, orders a separate trial of any claim, cross-claim, counterclaim, or third-party complaint. It may also order, for the same reasons, a separate trial of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues (Sec. 2, Rule 31, Rules of Court).

Under the same rule, the court may likewise order a modification of the order of trial if it so directs for “special reasons.”


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Reopening the case of a party for the purpose of introducing further evidence

1. The parties may be permitted by the court to adduce evidence on their original case even after the presentation of their original evidence provided:

(a) there are good reasons, and (b) such reasons are in furtherance of justice. 2. The basis for a motion to reopen a case to introduce

further evidence is Sec. 5, Rule 30 of the Rules of Court, which reads:

“Sec. 5. x x x x (f) The parties may then respectively adduce rebutting

evidence only, unless the tourt, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case x x x.” (emphasis supplied).

Interpreting the above rule, the Court in Republic v. Sandiganbayan (Fourth Division), G.R. No. 152375, December 16, 2011, explained:

“Under this rule, a party who has the burden of proof must introduce, at the first instance, all the evidence he relies upon and such evidence cannot be given piecemeal. The obvious rationale of the requirement is to avoid injurious surprises to the other party and the consequent delay in the administration of justice.

A party’s declaration of the completion of the presentation of his evidence prevents him from introducing further evidence; but where the evidence is rebuttal in character, whose necessity, for instance, arose from the shifting of the burden of evidence from one party to the other; or where the evidence sought to be presented is in the nature of newly discovered evidence, the party’s right to introduce further evidence must be recognized. Otherwise, the aggrieved party may avail of the remedy of certiorari.”


Citing Lopez v. Liboro (81 Phil. 431), the Court further explained:

“After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. The omission to present evidence on the testator’s knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight (Republic v. Sandiganbayan [Fourth Division], G.R. No. 152375, December 16, 2011; emphasis supplied).”

Also citing Director of Lands v. Roman Archbishop of Manila (41 Phil. 121), the Court ruled:

“The strict rule is that the plaintiff must try his case out when he commences. Nevertheless, a relaxation of the rule is permitted in the sound discretion of the court. “The proper rule for the exercise of this discretion,” it has been said by an eminent author, “is, that material testimony should not be excluded because it is offered by the plaintiff after the defendant has rested, although not in rebuttal, unless it has been kept back by a trick, and for the purpose of deceiving the defendant and affecting his case injuriously xxx” (Republic v. Sandiganbayan [Fourth Division], G.R. No. 152375, December 16, 2011; emphasis supplied).”

Consolidation or severance (Bar 2011) 1. When actions that involve a common question of law or

fact are pending before the court, the court may order a joint hearing or trial of any or all the matters in issue in the actions and may order the consolidation of all the actions (Sec. 1, Rule 31, Rules of Court).


2. On the other hand, the court may also order a separate trial of any claim, cross-claim, counterclaim, or third- party complaint or issues. The court may do so in furtherance of convenience or to avoid prejudice (Sec. 2, Rule 31, Rules of Court).

3. “It is a time-honored principle that when two or more cases involve the same parties and affect closely related subject matters, they must be consolidated and jointly tried, in order to serve the best interests of the parties and to settle expeditiously the issues involved. In other words, consolidation is proper wherever the subject matter involved and relief demanded in the different suits make it expedient for the court to determine all of the issues involved and adjudicate the rights of the parties by hearing the suits together.

The purpose of this rule is to avoid multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets, and simplify the work of the trial court. In short, consolidation aims to attain justice with the least expense and vexation to the parties-litigants. It contributes to the swift dispensation of justice, and is in accord with the aim of affording the parties a just, speedy, and inexpensive determination of their cases before the courts. Further, it results in the avoidance of the possibility of conflicting decisions being rendered by the courts in two or more cases, which would otherwise require a single judgment” (Steel Corporation of the Philippines v. Equitable-PCI Bank, Inc., 635 SCRA 403, 415- 416, November 17, 2010).

B. DEMURRER TO EVIDENCE

1. The regular order of trial requires the plaintiff to adduce evidence in support of his complaint. During the trial the plaintiff presents all the evidences available to him — object, documentary and testimonial (Sec. 5, Rule 30, Rules of Court).

2. After the plaintiff has completed the presentation of his evidence, the defendant shall then adduce evidence in support of his defense, counterclaim or third-party complaint as the case may be (Sec. 5, Rule 30, Rules of Court).


The defendant, however, may sincerely feel that the plaintiff has not lived up to his burden of proving the material allegations of his claim and is, therefore, not entitled to the relief sought for in his complaint.

3. Instead of presenting 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). This motion for dismissal is called a demurrer to evidence.

Motion to dismiss in Rule 16 distinguished from demurrer to evidence

A demurrer to evidence under Rule 33 is in effect, a motion to dismiss but is not the motion to dismiss described under Rule 16. Rule 33 and Rule 16 may be distinguished from each other on the following points:

(a) A motion to dismiss in Rule 16 is made before the filing of the answer; a demurrer to evidence in Rule 33 is made after the plaintiff rests his case, i.e., after the completion of the presentation of his evidence;

(b) There are many grounds for a motion to dismiss under Rule 16 but only one ground under Rule 33 (plaintiff is not entitled to relief);

(c) If a motion to dismiss under Rule 16 is denied, the defendant may file his responsive pleading; under Rule 33, the defendant may present his evidence;

(d) If the motion to dismiss in Rule 16 is granted, the complaint may be refiled, depending on the ground for dismissal; in Rule 33, the complaint may not be refiled and the remedy of the plaintiff is to appeal from the order of dismissal.

Stage of the proceedings when demurrer to evidence is availed of

A demurrer to evidence is availed of by the defendant after the plaintiff has completed the presentation of his evidence (Sec. 1, Rule 33, Rules of Court).


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Ground for a demurrer to evidence 1. 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).

2. Res judicata is an inappropriate ground for sustaining a demurrer to evidence, even as it stands as a proper ground for a motion to dismiss. A demurrer may be granted if, after the presentation of plaintiff’s evidence, it appears upon the facts and the law that the plaintiff has shown no right to relief. In contrast, the grounds for res judicata present themselves even before the presentation of evidence, and it should be at that stage that the defense of res judicata should be invoked as a ground for dismissal (Republic v. Tuvera, 516 SCRA 113, 130-131).

Effect of denial of the demurrer to evidence 1. If the demurrer is denied, the defendant shall have the

right to present his evidence (Sec. 1, Rule 33, Rules of Court). This means that the denial of the demurrer to evidence does not deprive the defendant to adduce evidence in his behalf.

2. Where a court denies a demurrer to evidence, it should set the date for the reception of the defendant’s evidence in chief. It should not proceed to grant the relief demanded by the plaintiff (Northwest Airlines, Inc. v. Court of Appeals, 284 SCRA 408, 416).

3. An order denying a demurrer to the evidence is interlocutory and is, therefore, not appealable. It can however, be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority (Katigbak v. Sandiganbayan, 405 SCRA 558, 572).

4. Note that a party who files a demurrer to evidence that is subsequently denied in an election case cannot insist on the right to present evidence. The provision of the Rules of Court governing demurrer to evidence does not apply to an election case (Gementiza v. COMELEC, 353 SCRA 724, 730). The Rules of Court, under the express dictum in Sec. 4 of Rule


I “shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings . . . ”

Effect of granting of the demurrer to evidence 1. If the demurrer is granted, the case shall be dismissed.

However, if on appeal the order granting the motion is reversed, the defendant loses his right to present evidence. (Sec. 1, Rule 33, Rules of Court; Republic v. Tuvera, 516 SCRA 113,136).

2. It is not correct for the appellate court reversing the order granting the demurrer to remand the case to the trial court for further proceedings. The appellate court should, instead of remanding the case, render judgment on the basis of the evidence submitted by the plaintiff.

3. In a case, the trial court, acting on respondents’ demurrer to evidence, dismissed the complaint on the ground that the plaintiff had adduced mere hearsay evidence. However, on appeal, the appellate court reversed the trial court because the genuineness and the due execution of the disputed pieces of evidence had in fact been admitted by defendants.

The Court clearly instructed:

“Applying Rule 33, Section 1 of the 1997 Rules of Court, the CA should have rendered judgment on the basis of the evidence submitted by the petitioner. While the appellate court correctly ruled that “the documentary evidence submitted by the [petitioner] should have been allowed and appreciated xxx,” and that “the petitioner presented quite a number of documentary exhibits xxx enumerated in the appealed order,” we agree with petitioner that the CA had sufficient evidence on record to decide the collection suit. A remand is not only frowned upon by the Rules, it is also logically unnecessary on the basis of the facts on record” (Radiowealth Finance Corporation v. Del Rosario, 335 SCRA 288, Underscoring supplied).

4. A demurrer to evidence abbreviates judicial proceedings, it being an instrument for the expeditious termination of


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an action. Caution, however, must be exercised by the party seeking the dismissal of a case upon this ground as under the rules, if the movant’s plea for the dismissal on demurrer to evidence is granted and the order of dismissal is reversed on appeal, he loses his right to adduce evidence. If the defendant’s motion for judgment on demurrer to evidence is granted and the order is subsequently reversed on appeal, judgment is rendered in favor of the adverse party because the movant loses his right to present evidence. The reviewing court cannot remand the case for farther proceedings; rather, it should render judgment on the basis of the evidence presented by the plaintiff (Consolidated Bank and Trust Corporation v. Del Monte Motor Works, Inc., 465 SCRA 117,135).

Demurrer in a civil case as distinguished from a demurrer in a criminal case (Bar 2007)

(a) In a civil case, leave of court is not required before filing a demurrer. In a criminal case, a demurrer is filed with or without leave of court (Sec. 23, Rule 119, Rules of Criminal Procedure).

(b) In a civil case, if the demurrer is granted, the order of dismissal is appealable (Sec. 1, Rule 33, Rules of Court). In a criminal case, the order of dismissal is not appealable because of the constitutional policy against double jeopardy.

(c) In a civil case, if the demurrer is denied, the defendant may proceed to present his evidence (Sec. 1, Rule 33, Rules of Court). In a criminal case, the accused may adduce his evidence only if the demurrer is filed with leave of court. He cannot present his evidence if he filed the demurrer without leave of court (Sec. 23, Rule 119, Rules of Court).

C. JUDGMENT

Meaning of a judgment

1. A judgment is the final ruling by a court of competent jurisdiction regarding the rights or other matters submitted


to it in an action or proceeding (Macahilig v. Heirs of Gracia M. Magalit, 344 SCRA 838, 848). A judgment is the court’s official and final consideration and determination of the respective rights and obligations of the parties (46 Am Jur 2d, Judgments Sec. 1).

2. It is vital to keep in mind that in the process of rendering a judgment or in resolving controversies, courts can only consider facts and issues pleaded by the parties. Courts, as well as magistrates presiding over them are not omniscient. They can only act on the facts and issues presented before them in appropriate pleadings. They may not even substitute their own personal knowledge for evidence. Nor may they take notice of matters except those expressly provided as subjects of mandatory judicial notice (Social Justice Society v. Atienza, 545 SCRA 92,114).

Judgment and decision “Judgment” is normally synonymous with “decision” (Tung

Chin Hui v. Rodriguez, 340 SCRA 765, 774). Requisites of a valid judgment

1. For a judgment to be valid, the following requisites must exist:

(a) The court or tribunal must be clothed with authority to hear and determine the matter before it (Acosta v. COMELEC, 293 SCRA 578, 580);

(b) The court must have jurisdiction over the parties and the subject matter;

(c) The parties must have been given an opportunity to adduce evidence in their behalf (Acosta v. COMELEC, 293 SCRA 578, 580);

(d) The evidence must have been considered by the tribunal in deciding the case (Acosta v. COMELEC, 293 SCRA 578, 580);

(e) The judgment must be in writing, personally and directly prepared by the judge. A verbal judgment


is, in contemplation of law, not in esse, therefore, ineffective (Corpus v. Sandiganbayan, 442 SCRA 294, 309);

(f) The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court (Sec. 1, Rule 36, Rules of Court; Sec. 14, Art. VIII, Constitution of the Philippines; Report on the Judicial Audit Conducted in the Municipal Trial Court of Tambulig, 472 SCRA 419, 429). This requirement refers to decisions and final orders on the merits, not to those resolving incidental matters (Pablo-Gualberto v. Gualberto V, 461 SCRA 450, 469).

2. Decisions, no matter how concisely written, must distinctly and clearly set forth the facts and the law upon which they are based (Naguiat v. NLRC, 269 SCRA 564, 577; Yu Eng Cho v. Pan American World Airways, Inc., 328 SCRA 717, 727-728). This rule, however, does not require that the court shall state in its decision all the facts found in the records (People v. Derpo, 168 SCRA 447, 455).

3. A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis is distinctly and clearly set forth, the judgment is valid (Chan v. Court of Appeals, 457 SCRA 502, 513).

4. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is specially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal (Miguel v. JCT Group, Inc., 453 SCRA 529, 541).

A decision with nothing to support it is a patent nullity and should be struck down and set aside as void (Miguel v. JCT Group, Inc., 453 SCRA 529, 541).

5. A void judgment has no legal and binding effect, force or efficacy for any purpose. In contemplation of law, it is nonexistent. Such judgment or order may be resisted in any action


or proceeding whenever it is involved. It is not even necessary to take steps to vacate or avoid a void judgment or final order; it may simply be ignored (Guevarra v. Sandiganbayan, Fourth Division, 454 SCRA 372, 382-383).

Orders granting or denying a motion to dismiss

1. It is not only judgments which must distinctly and clearly state the facts and the law upon which they are based. Under Sec. 3 of Rule 16 of the Rules of Court, as amended, it is required that resolutions disposing of a motion to dismiss shall state clearly and distinctly the reasons therefore. This requirement proscribes the common practice of perfunctorily dismissing a motion to dismiss for lack of merit. Such cavalier dispositions can often pose difficulty and misunderstanding on the part of the aggrieved party in taking recourse therefrom and likewise on the higher court called upon to resolve the same, usually on certiorari (Barrazona v. RTC of Baguio, 486 SCRA 555, 561-562).

2. An example of an order violative of the Rules of Court is one which reads: “This Court finds that the grounds stated in the Motion to Dismiss are without merit, hence, the same is denied” (Barrazona v. Regional Trial Court of Baguio supra at 561).

Denials of a petition for review or of a motion for reconsideration The Constitution of the Philippines also requires that the

refusal to give due course to or the denial of a petition for review or of a motion for reconsideration must state the legal basis therefor (Sec. 14, Art. VIII, Philippine Constitution).

Conflict between the dispositive portion and body of the decision 1. A judgment has two parts, namely, (a) the body of the

judgment or the ratio decidendi, and (b) the dispositive portion of the judgment or the fallo.


The body of the decision called the ratio decidendi is not the part of the judgment that is subject to execution but the fallo because it is the latter which is the judgment of the court.

2. The importance of the fallo or dispositive portion of a decision cannot be gainsaid — the disposition should state whether the complaint or petition is granted or denied, the specific relief granted, and the costs (Morales v. Court of Appeals, 461 SCRA 34, 48).

It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively notwithstanding the existence of inconsistent statements in the body that may tend to confuse (Light Rail Transit Authority v. Court of Appeals, 444 SCRA 125,136).

3. The general rule is that where there is a conflict between the dispositive portion or fallo of the decision and the body of the decision, the fallo controls. This rule rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing. However, where the inevitable conclusion from the body of the decision is so clear that there was a mere mistake in the dispositive portion, the body of the decision will prevail (So v. Food Fest Land, Inc., 642 SCRA 592, 594-595, February 9, 2011).

Ambiguity in the judgment; clarificatory judgment Where the judgment is difficult to execute because of

ambiguity in its terms, it is suggested that the remedy to avail of is to have the court remove the ambiguity by the filing of a motion for a clarificatory judgment and not to assail the judgment as void.

Resolutions of the Supreme Court 1. Resolutions of the Supreme Court denying petitions to

review decisions of the Court of Appeals, are not “decisions” within the purview of the Constitution. Accordingly, a petition to review the decision of the Court of Appeals is not a matter of right, but of sound judicial discretion; and so there is no


need fully to explain the Court’s denial (Novino v. Court of Appeals, 8 SCRA 279, 280).

2. Minute resolutions are likewise not decisions falling within the constitutional requirement (Commercial Union Assurance Company, Ltd. v. Lepanto Consolidated Mining Company, 86 SCRA 79, 89 citing Novino v. Court of Appeals, 8 SCRA 279).

3. When a minute resolution is issued by the Supreme Court denying or dismissing a petition or a motion for recon-sideration for lack of merit, it is understood that the challenged decision or order, together with all its findings of fact and legal conclusions are deemed sustained (Complaint ofAr- rienda Against Justices Puno, Kapunan, Pardo, Ynares-San- tiago, et al., 460 SCRA 1, 13-14).

In the case cited, the complainant alleges that the disposition of his various motions and pleadings through minute resolutions amounted to a deprivation of due process. The Court held that “it is not duty-bound to issue decisions or resolutions signed by the justices all the time. It has ample discretion to formulate ponencias, extended resolutions or even minute resolutions, depending on its evaluation of a case as long as a legal basis exists. When a minute resolution (signed by the Clerk of Court upon orders of the Court) denies or dismisses a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order, together with all its findings of fact and legal conclusions, are deemed sustained.”

Interlocutory orders 1. The word interlocutory refers to something intervening

between the commencement and the end of the suit which decides some point or matter but is not a final decision of the whole controversy (Rudecon Management Corporation v. Singson, 454 SCRA 612, 627-628).

They are those that determine incidental matters that do not touch on the merits of the case or put an end to the


proceedings (Silverio, Jr. v. Filipino Business Consultants, Inc., 466 SCRA 584, 595).

Interlocutory orders are those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. Examples: An order denying a motion to dismiss, an order granting an extension of time to file a pleading, or one authorizing an amendment thereof, or granting or denying applications for postponement or inspection of documents, are interlocutory orders.

2. Interlocutory orders are not decisions or judgments within the constitutional definition. It was, thus, held that judgments as referred to in Sec. 1 of Rule 36 do not include resolutions which are interlocutory orders (Amargo v. Court of Appeals, 53 SCRA 64, 68).

Questioning interlocutory orders The proper remedy to question an improvident interlocutory

order is a petition for certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of redress to question only final judgments (Silverio v. Filipino Business Consultants, 466 SCRA 584, 594). One cannot appeal from an interlocutory order. Permitting appeals on such an order may result in multiplicity of appeals in a single action thus, prolonging the action (Rudecon Management Corporation v. Singson, 454 SCRA 612, 629).

Memorandum decisions 1. A memorandum decision is one rendered by an appellate

court and incorporates by reference the findings of fact and conclusions of law contained in the decision or order under review. The reason for allowing the findings of facts and conclusions of law to be incorporated by reference is to avoid the cumbersome reproduction and repetition of the decision of the lower court in the decision of the higher court. To be valid however, such decision must not simply incorporate the findings of facts and the conclusions of law of the lower court by reference. It must also provide direct access to the facts and


the law being adopted, which must be contained in a statement attached to the decision and made an indispensable part of the decision (See Francisco v. Permskul, 173 SCRA 324).

2. Memorandum decisions are authorized by BP 129 and Rule 51 of the Rules of Court. Both provide: “Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of facts and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from” (Sec. 40, BP 129; Sec. 5, Rule 51, Rules of Court).

3. Although a memorandum decision is permitted under certain conditions, it cannot merely refer to the conclusions of law of the lower court. The appellate court must make full findings of fact and conclusions of law of its own (Ong Chia Kwan v. Court of Appeals, 345 SCRA 586, 589-580).

4. As long as a memorandum decision states the nature of the case, summarizes the facts with references to the record and contains a statement of the applicable laws and jurisprudence and the tribunal’s assessment and conclusions on the case, the constitutional requirement of a valid judgment will not be transgressed

The Court in one case explained:

“ x x x In this jurisdiction, it has been held that memorandum decisions do not transgress the constitutional requirement in Article VIII, Section 14, on clearly and distinctly stating the facts and the law on which the decision is based. Nonetheless, it would be more prudent for a memorandum decision not to be simply limited to the dispositive portion but to state the nature of the case, summarize the facts with references to the record, and contain a statement of the applicable laws and jurisprudence and the tribunal’s assessments and conclusions on the case. This practice would better enable a court to make an appropriate consideration of whether the dispositive portion of the judgment sought to be enforced is consistent with the findings of facts and conclusions of


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law made by the tribunal that rendered the decision. This is particularly true where the decisions, orders, or resolutions came from a court in another jurisdiction. Otherwise, the enforcement of the decisions would be based on presumptions that laws in other jurisdictions are similar to our laws, at the expense of justice based on the merits” (Oil and Natural Gas Commission v. Court of Appeals, 315 SCRA 296, 307-308).

Meaning of rendition of judgment

1. Rendition of a judgment is the filing of the same with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition.

The Supreme Court stated the rule in this wise:

“The mere pronouncement of the judgment in open court with the stenographer taking note thereof does not xxx constitute a rendition of judgment. It is the filing of the signed decision with the clerk of court that constitutes rendition” (Ago v. Court of Appeals, 6 SCRA 530, 534).

A later case confirmed that it is not the writing of the judgment or its signing which constitutes rendition of the judgment. This case declared that the rule is well-established that the filing of the decision, judgment or order with the clerk of court, not the date of the writing of the decision or judgment nor the signing or even the promulgation thereof, that constitutes rendition (Castro v. Malazo, 99 SCRA 164,170).

2. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court (Ago v. Court of Appeals, 6 SCRA 530, 535).

Period within which to render a decision

1. All cases filed must be decided or resolved by the Supreme Court within twenty-four (24) months from the date of their submission for decision, and unless reduced by


the Supreme Court, within twelve (12) months for all lower collegiate courts and three (3) months for all other lower courts (Art. VIII, Sec. 15, Constitution of the Philippines).

2. A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court (Art. VIII, Sec. 15, Constitution of the Philippines).

3. The ninety (90) day period for deciding the case com-mences from the submission of the case for decision without memoranda. In case the court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the last memorandum, or the expiration of the period to do so, whichever is earlier. In cases where the court allows the filing of memoranda, no further orders announcing the submission of the case for decision is necessary before they are deemed submitted for decision (Re: Report on the Judicial Audit of RTC Brs. 29 and 59, Toledo City, 292 SCRA 8, 21-22).

4. As a general principle, rules prescribing the time within which certain acts must be done or certain proceedings taken, are considered absolutely indispensable to the prevention of needless delays and to the orderly and speedy discharge of official business. By their very nature, these rules are regarded as mandatory. The 1987 Constitution requires trial judges to dispose of the court’s business promptly and to decide cases and matters within three (3) months from the filing of the last pleading, brief or memorandum. In the disposition of cases, members of the bench have always been exhorted to strictly adhere to this rule to prevent delay, a major culprit in the erosion of public faith and confidence in our justice system. The speedy disposition of cases by judges is in fact unequivocally directed by Canon 6 of the Code of Judicial Ethics: “He should be prompt in disposing of all matters submitted to him, remembering that justice delayed is often justice denied.”

“In the present case, it took respondent Judge more than five (5) years before she resolved a simple motion to withdraw the information. This is indicative of the gross inefficiency that


undermines the people’s faith in the judiciary and reinforces in the mind of the litigants the impression that the wheels of justice grind exceedingly slow. We cannot allow this to happen, particularly at a time when the clogging of the court dockets is one of the main complaints against the judiciary” (Plata v. Torres, 570 SCRA 12, 17-18).

Extension of the period to render a decision An extension of the period may be set by the Supreme Court

within which to decide a case upon request by the judge concerned on account of heavy caseload or by other reasonable excuse. Without an extension granted by the court, a delay in the disposition of cases is tantamount to gross inefficiency on the part of the judge (Arap v. Mustafa, 379 SCRA 1, 4-5).

Judgment penned by a judge who did not hear the evidence 1. It is not necessary that the judge who heard the evidence

be the same judge who shall pen the decision. The judge trying the case may die, resign, be disabled or transferred to another court. In such an eventuality, another judge has to continue and finish the trial. The succeedingjudge can examine and evaluate the evidence already presented by the simple expedient of going over the transcripts of the testimony of the witnesses in the same manner as appellate courts review the evidence on record (People v. Tumaru, 319 SCRA 515, 528). Such reliance does not violate substantive and procedural due process (Serna v. Court of Appeals, 308 SCRA 527, 533).

2. The fact alone that the judge who penned the decision was not the same judge who heard the case and received the evidence therein would not render the findings in the said decision erroneous and unreliable. While the conduct and demeanor of witnesses may sway a trial court judge in deciding a case, it is not, and should not be, his only consideration. Even more vital for the trial court judge’s decision are the contents and substance of the witnesses’ testimonies, as borne out by the transcript of stenographic notes, as well as the object and documentary evidence submitted and made part of the records


of the case (Citibank, N.A. v. Sabeniano, 504 SCRA 378, 412- 413).

Judgment penned by a judge who had ceased to be a judge 1. A decision penned by a judge after his retirement cannot

be validly promulgated and cannot acquire a binding effect. In like manner, a decision penned by a judge during his incumbency cannot be validly promulgated after his retirement. When a judge retires, all his authority to decide any case, i.e., to write, to sign and promulgate the decision has also “retired” with him (Nazareno v. Court of Appeals, 378 SCRA 28, 34-35).

2. What deserves stressing is that, in this jurisdiction, there exists a disputable presumption that the RTC decision was rendered by the judge in the regular performance of his official duties. While the said presumption is only disputable, it is satisfactory unless contradicted or overcame by other evidence. Encompassed in this presumption of regularity is the presumption that the RTC judge, in resolving the case and drafting his decision, reviewed, evaluated, and weighed all the evidence on record. That the said RTC judge is not the same judge who heard the case and received the evidence is of little consequence when the records and transcripts of stenographic notes are complete and available for consideration by the former (Citibank, N.A v. Sabeniano, 504 SCRA 378, 412).

Judgment penned by a judge who was transferred A judge who was permanently transferred to another court of

equal jurisdiction before the case heard by him was decided may validly prepare and sign his decision on the said case and send the same to the court where he was originally assigned (Valentin v. Sta. Maria, 55 SCRA 40). The judge who pens the decision of a case heard by him before he was assigned or transferred to another district or branch of the court of equal jurisdiction is considered an incumbent Judge, albeit assigned to a different branch at the time the decision was promulgated (Marchadesch v. Vda. De Yepes, 442 SCRA 254, 262).


Judgments of the Supreme Court 1. The decisions of the Supreme Court form part of the legal

system (Peltan Development, Inc. v. Court of Appeals, 270 SCRA 82, 92). Hence, every court must take cognizance of the decisions of the Supreme Court. Said decisions are proper subjects of mandatory judicial notice. Members of the bench have a responsibility to know and to apply the latest holdings of the Supreme Court (Heirs of Felicidad Canque v. Court of Appeals, 275 SCRA 741, 749).

2. It is the duty of lower courts to obey the decisions of the Supreme Court and render obeisance to its status as the apex of hierarchy of courts. A lower court cannot reverse or set aside the decisions or orders of a superior court, especially of this Court, for to do so will nullify the essence of review and negate the principle of hierarchy of courts. For “there is only one Supreme Court from whose decisions all other courts should take their bearings” (Manila Electric Company v. Philippine Consumers Foundation, Inc., 374 SCRA 262, 277; Mallari v. Arcega, 379 SCRA 537, 550).

Rule of stare decisis 1. Common usage of the concept of stare decisis tells us that

the rule holds that when the Supreme Court has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same (Hortencia Bino / Hortencia Starke, Inc. v. Cuenca, 456 SCRA 300, 309).

The principle of stare decisis et non quieta movere holds that a point of law, once established by the court, will generally be followed by the same court and by all courts of lower rank in subsequent cases involving a similar legal issue. This proceeds from the legal principle that, in the absence of powerful countervailing considerations, like cases ought to be decided alike (Cabigon v. Pepsi-Cola Products, Philippines, Inc., 541 SCRA 149, 156-157).

2. In the same vein, the Supreme Court likewise instructs:


“Stare decisis et non quieta movere. Let the decision stand and disturb not what is already settled. The doctrine of stare decisis is a salutary and necessary rule. When a court lays down a principle of law applicable to a certain state of facts, it must adhere to such principle and apply it to all future cases in which the facts sued upon are substantially the same. Once a case is decided one way, then another case involving exactly the same point at issue should be decided the same way. It proceeds from the principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike (Ladanga v. Aseneta, 471 SCRA 381, 388-389).”

In much simpler terms, the principle of stare decisis enjoins adherence to judicial precedents and requires courts to follow the rule established in a decision of the Supreme Court. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.

3. The principle of stare decisis enjoins adherence by the lower courts to doctrinal rules established by this Court in its final decisions. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. Basically, it is a bar to any attempt to relitigate the same issues, necessary for two simple reasons: economy and stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code which provides that “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines” (Ting v. Velez-Ting, 582 SCRA 694, 704-705).

4. In the words of the Court in another case:

“The doctrine of stare decisis embodies the legal maxim that a principle or rule of law which has been established by the decision of a court of controlling jurisdiction will be followed in other cases involving a similar situation. It is founded on the necessity for securing certainty and stability in the law and does not require iden


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tity of or privity of parties. This is unmistakable from the wordings of Article 8 of the Civil Code. It is even said that such decisions “assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to decide thereby but also of those in duty bound to enforce obedience thereto.” Abandonment thereof must be based only on strong and compelling reasons, otherwise, the becoming virtue of predictability which is expected from this Court would be immeasurably affected and the public’s confidence in the stability of the solemn pronouncements diminished (Pepsi-Cola Products, Inc. v. Pagdanganan, 504 SCRA 549, 564).

Obiter dictum 1. An obiter dictum is an opinion expressed by a court,

which is not necessary to the decision of the case before it (Delta Motors v. Court of Appeals, 276 SCRA 212, 223). It is neither enforceable as a relief nor a source of a judicially actionable claim (Republic v. Nolasco, 457 SCRA 400, 408).

2. " . . . It is a remark made, or opinion expressed by a judge in his decision upon a cause. . . that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such is not binding as a precedent” (Italics supplied; Villanueva v. Court of Appeals, 379 SCRA 563, 463- 469; See for further readings Ayala Corporation v. Rosa-Diana Realty, 346 SCRA 663).

When a judgment becomes final 1. The term “final” when used to describe a judgment may

be used in two senses. In the first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corporation v. Singson, 454 SCRA 612, 628).


The finality of a judgment in this sense, has the effect of ending the litigation, and an aggrieved party may then appeal from the judgment.

Under Rule 41 (Sec. 1) of the Rules of Court, an appeal may be taken from a judgment or final order that completely disposes of the case. Under the same rule, an appeal cannot be taken from an interlocutory order (Sec. l[b], Rule 41, Rules of Court).

2. By implication from Sec. 1 of Rule 39, the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been an appeal, it has already been resolved by a highest possible tribunal. In this sense, the judgment is commonly referred to as one that is “final and executory.”

Final judgment versus interlocutory order The case of Philippine Business Bank v. Chua, 634 SCRA

635, 648, November 15, 2010, gives the following distinctions:

“[A] final judgment or order is one that finally dis-poses of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the mer-its which, on the basis of the evidence presented at the trial, declares categorically what the rights and obliga-tions of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties’ next move ... and ultimately, of course, to cause the execution of the judgment once it becomes “final” or, to use the established and more distinctive term, “final and executory.”

x x x

Conversely, an order that does not finally dispose of the case, and does not end the Court’s task of adjudicat-ing the parties’ contentions and determining their rights


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and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is “interlocutory,” e.g., an order denying a motion to dismiss under Rule 16 of the Rules xxx Unlike a ‘final’ judgment or order, which is appealable, as above pointed out, an ‘interlocutory’ order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case.” (Citing Denso [Phils.], Inc. v. Intermediate Appellate Court, 148 SCRA 280).

Conclusiveness of judgments (immutability of judgments) (Bar 2011)

1. Under the doctrine of conclusiveness or immutability of judgments, a judgment that has attained finality can no longer be disturbed. The doctrine which is sometimes referred to as “preclusion of issues” or “collateral estoppel,” holds that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties.

2. “As a rule, a final judgment may no longer be altered, amended or modified, even if the alteration, amendment or modification is meant to correct what is perceived to be an er-roneous conclusion of fact or law and regardless of what court, be it the highest Court of the land, rendered it” (Apo Fruits Corporation v. Land Bank of the Philippines, 632 SCRA 727, 760, October 12, 2010; See also Filipinas Palmoil Processing, Inc. v. Dejapa, 641 SCRA 572, 581, February 7, 2011).

3. Indeed, well-settled is the rule that a decision that has attained finality can no longer be modified even if the modification is meant to correct erroneous conclusions of fact or law (Montemayor v. Millora, G.R. No. 168251, July 27, 2011) and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land (Arra Realty Corporation v. Paces International Corporation, 636 SCRA 339, 345, December 1, 2010 citing Pasiona, Jr. v. Court of Appeals, G.R. No. 165471, July 21, 2008, 559 SCRA 137).

4. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration


of justice that once a judgment has become final, the issue or cause involved therein should be laid to rest. The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice that at the risk of occasional error, the judgment of courts and the award of quasi-judicial agencies must become final at some definite date fixed by law (Filipro, Inc. v. Permanent Savings & Loans Bank, 503 SCRA 430, 438; Heirs of Maura So v. Obliosca, 542 SCRA 406, 418).

5. Also, “x x x It should be borne in mind that the right of the winning party to enjoy the finality of the resolution of the case is also an essential part of public policy and the orderly administration of justice x x x ” (Arra Realty Corporation v. Paces International Corporation, 636 SCRA 339, 345, December 1, 2010 citing Pasiona, Jr. v. Court of Appeals, G.R. No. 165471, July 21, 2008, 559 SCRA 137).

Reasons for the rule on conclusiveness or immutability of judgments

1. Public policy and sound practice demand that at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. This is better observed if the court executing the judgment would refrain from creating further controversy by effectively modifying and altering the dispositive portion of the decision, thus further delaying the satisfaction of the judgment. No matter how just the intention of the trial court, it cannot legally reverse what has already been settled (First United Constructors Corporation v. Court of Appeals, 511 SCRA 318, 326-327).

2. When a judgment is final and executory, it becomes immutable and unalterable. It may no longer be modified in any respect either by the court which rendered it or even by the Court. The doctrine of immutability and inalterability of a final judgment has a two-fold purpose, to wit:

(1) to avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge of judicial business; and


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(2) to put an end to judicial controversies, at the risk of occasional errors, which is precisely why courts exist. Controversies cannot drag on indefinitely (Marcos v. Pamintuan, 639 SCRA 658, 665, January 18, 2011). 3. Also, once a case is decided with finality, the controversy

is settled and the matter is laid to rest. The prevailing party is entitled to enjoy the fruits of his victory while the other party is obliged to respect the court’s verdict and to comply with it (Siy v. NLRC, 468 SCRA 154, 161). Remedies against a final and executory decision

“xxx A final and executory decision can only be annulled by a petition to annul a judgment on the ground of extrinsic fraud and lack of jurisdiction, or by a petition for relief from a final order or judgment under Rule 38 of the Rules of Court x x x it can no longer be disturbed, altered, or modified in any respect except to correct clerical errors or to make nunc pro tunc entries. Nothing further can be done to a final judgment except to execute it” (Salting v. Velez, 639 SCRA 124, 131, January 10, 2011). Exceptions to the rule of immutability of judgments

1. The immutability doctrine admits exceptions such as:

(a) the correction of clerical errors (Ram’s Studio and Photographic Equipment, Inc. v. Court of Appeals, 346 SCRA 691, 697; Briones-Vasquez v. Court of Appeals, 450 SCRA 482, 491; Filipinas Palmoil Processing, Inc. v. Dejapa, 641 SCRA 572, 581, February 7, 2011).

(b) the so-called nunc pro tunc entries which cause no prejudice to any party and void judgments (Briones- Vasquez v. Court of Appeals, 450 SCRA 482, 491; Salting v. Velez, 639 SCRA 124, 131, January 10, 2011; Filipinas Palmoil Processing, Inc. v. Dejapa, 641 SCRA 572, 581, February 7, 2011).

(c) whenever circumstances transpire after the finality of the decision rendering its execution unjust and


inequitable (Apo Fruits Corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5, 2011 as cited by Justice Abad); or

(d) in cases of special and exceptional nature as when facts and circumstances transpire which render the judgment’s execution impossible or unjust, when necessary in the interest of justice to direct its modi-fication to harmonize the disposition with prevailing circumstances (Industrial Timber Corporation v. Ababon, 480 SCRA 171, 181-182 citing Industrial Timber Corporation v. NLRC, 233 SCRA 597).

(e) in case of void judgments (Apo Fruits Corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5, 2011 as cited by Justice Abad; Filipinas Palmoil Processing, Inc. v. Dejapa, 641 SCRA 572, 581, February 7, 2011).

2. Also, the Supreme Court is not precluded from rectifying errors of judgment if blind and stubborn adherence to the doctrine of immutability of final judgments would involve the sacrifice of justice for technicality (Heirs of Maura So v. Obliosca, 542 SCRA 406).

3. The Supreme Court, in the past, has reversed judgments and recalled their entries in the interest of substantial justice and where special and compelling reasons called for such actions (Apo Fruits Corporation v. Land Bank of the Philippines, 632 SCRA 727, 760-761,G.R. No. 164195, October 12, 2010).

In Apo Fruits Corporation, the Court declared that in certain cases it had reversed its own judgment on a second motion for reconsideration and even on a third motion for reconsideration. In some cases it recalled the entries of judgment after finding that doing so was in the interest of justice.

In Apo, it was further declared: x x x

“However, this Court has relaxed this rule in order to serve substantial justice considering (a) matters of


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life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules , (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby.

Invariably, rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice.

Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflects this principle. The power to sus-pend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself had already declared to be final.” [Emphasis supplied by the case].

Res judicata effect of a final judgment or final order 1. The judgment or final order has the effect of res judicata

between the parties. Res judicata has two aspects, namely: (a) bar by a prior judgment — the judgment or final order is

a bar to the prosecution of a subsequent action based on the same claim or cause of action; and

(b) conclusiveness of judgment — the judgment or final order precludes the relitigation of particular issues or facts on a different demand or cause of action (San Pedro v. Binalay, 468 SCRA 47, 57; Agustin v. Sps. De los Santos, 576 SCRA 576).

2. By force of res judicata, a final judgment is conclusive not only on the matters or issues directly or actually determined by the decision but also on all issues that could have been raised or litigated in the anterior suit (Sec. 47[b], Rule 39, Rules of Court; San Pedro v. Binalay, 468 SCRA 47, 57).

3. A significant effect of a final judgment or order is its being appealable (Sec. 1, Rule 41, Rules of Court).


A final order is one that which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined (Francisco Basa v. People of the Philippines, 451 SCRA 510-517).

4. A judgment or final order rendered by a court of the Philippines has the effect of resolving the issues raised in the case.

Specifically, in case of a judgment or final order against a specific thing, the judgment or final order is conclusive upon the title to the thing; in respect to the probate of a will or the administration of the estate of the deceased person, it is conclusive upon the will or administration but shall be prima facie evidence only of the death of the testator or intestate. With respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the condition, status or relationship of the person (Sec. 47[a], Rule 39, Rules of Court).

5. A judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order, has the following effects:

(a) If the judgment is on a specific thing, the judgment is conclusive upon the title to the thing;

(b) If the judgment is against a person, the judgment is presumptive evidence of a right as between the parties and their successor in interest by a subsequent title. (Bar 2007).

In either case, the judgment or final order may, however, be assailed on any of the following grounds: (i) evidence of want of jurisdiction; (b) want of notice to the party; (c) collusion; (d) fraud; or (e) clear mistake of fact or law (Sec. 48, Rule 39, Rules of Court; Bar 2007).

Note: Foreign arbitral awards may be enforced under R.A. 9285, or the Alternative Dispute Resolution Act of 2004.


The award when confirmed by the RTC shall be enforced in the same manner as final and executory judgments of Philippine courts (Bar 2007; Sec. 44, R.A. 9285).

Judgment on the merits 1. A judgment is “on the merits” when it amounts to a legal

declaration of the respective rights and duties of the parties, based upon the disclosed facts. “Merits” has been as a matter of substance in law, as distinguished from a matter of form refers to the real or substantial grounds of action or defense, as contrasted with some technical or collateral matter raised in the course of the suit. There could be a judgment on the merits even if there is no trial. A ruling based on a motion to dismiss, without any trial or formal presentation of evidence, can still be a judgment on the merits. A judgment ruling that the defense was substantial enough to overcome the relief sought is a judgment on the merits.

Dismissal on the ground of failure to state a cause of action is still a judgment on the merits and operates as res judicata on a subsequent case involving the same parties, subject matter and cause of action as long as the dismissal ruled on the issues raised. What appears to be essential to a judgment on the merits is that it be a reasoned decision, which clearly states the facts and the law on which it is based. Thus, where the court, for example, ruled on the right of the petitioner to foreclose the property, that the debtor was in default and that the foreclosure was valid by looking into the law and the facts and pleadings and applied the law accordingly, the judgment settled the controversy between the parties (Luzon Development Bank v. Conquilla, 470 SCRA 533, 549-544).

2. Jurisprudence does not require that a judgment on the merits be one rendered after a full blown trial. In Perez v. Court of Appeals, 464 SCRA 89, 107, an order of the trial court that the complaint does not state a cause of action is a determination of the case on the merits. In Luzon Development Bank v. Conquilla, 470 SCRA 533,549-544, the Court similarly ruled that a dismissal for failure to state a cause of action is still a judgment on the merits.


It has been held, however, that a judgment dismissing an action for want of jurisdiction cannot operate as res judicata on the merits (Custodio v. Corrado, 435 SCRA 500, 509). Also, where the dismissal was on the ground of the failure of the petitioner to furnish a copy of her formal offer of evidence, the decision does not constitute an adjudication on the merits, but only a resolution of an interlocutory matter (Page-Tenorio v. Tenorio, 443 SCRA 560, 569).

Doctrine of law of the case According to this principle, whatever is once irrevocably

established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. This principle generally finds application in cases where an appellate court passes on a question and remands the case to the lower court for further proceedings. The question there settled becomes the law of the case upon subsequent appeal. Consequently, the court reviewing the succeeding appeal will not re-litigate the case but instead apply the ruling in the previous appeal. This enables the appellate court to perform its duties satisfactorily and efficiently which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case and upon any and subsequent appeal (See RCPI v. Court of Appeals, 488 SCRA 306; Samson v. Cabanas, 461 SCRA 545; Guevara v. BPI Securities Corporation, 498 SCRA 613; Mercury Group of Companies v. Home Development Mutual Fund, 541 SCRA 211).

Several judgment 1. A several judgment is one rendered by a court against

one or more defendants, but not against all, leaving the action to proceed against the others (Sec. 4, Rule 36, Rules of Court).

2. A several judgment is proper when the liability of each party is clearly separable and distinct from that of his co


parties, such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the other (Fernando v. Santamaria, 446 SCRA 136,142).

3. Debtors under a joint obligation have distinct and separable interests. In a joint obligation, the credit or debt is divided into as many equal shares as there are creditors and debtors, the credits or debts being distinct from one another (Art. 1208, Civil Code of the Philippines).

Separate judgment This kind of judgment presupposes that there are several

claims for relief presented in a single action. Aside from the original complaint for instance, the defendant may have interposed a counterclaim or a cross-claim or a third- party complaint. The court may, after determining the issues relative to a claim and considering other circumstances, may render separate judgment let us say, on the cross-claim or the counterclaim. The judgment will terminate the action with respect to that claim and the action shall proceed as to the remaining claims. Despite the rendition of a separate judgment, the court may, stay the execution of the separate judgment until the rendition of a judgment on all the other claims (Sec. 5, Rule 36, Rules of Court).

Conditional judgment A conditional judgment is one the effectivity of which depends

upon the occurrence or the non-occurrence of an event. Such a judgment is generally void because of the absence of a disposition (Cu-Unjieng v. Mabalacat Sugar Co., 70 Phil. 384).

Judgment sin perjuicio 1. A judgment sin perjuicio is traditionally understood to be

a brief judgment containing only the dispositive portion, without prejudice to the making of a more extensive discussion of the findings of fact and law to support it. This is not actually


a final decision, should be avoided and should not be looked with favor (Director of Lands v. Sanz, 45 Phil. 117).

2. Its current use may also refer to a dismissal of an action without prejudice to its being refiled on a later date as in a dismissal in Sec. 1 of Rule 17 and Sec. 5 of Rule 7.

Judgment nunc pro tunc (literally, “now for then”) 1. This is a judgment intended to enter into the record acts

which had already been done, but which do not yet appear in the record (Lichauco v. Tan Pho, 51 Phil. 682). It is a judgment which orders the entry of something which was actually previously done. Its purpose is not to supply an omitted action by the court but to enter into the record an action previously done but which was not reflected in the record by reason of inadvertence or mistake (Perkins v. Haywood, 31 N.E., 670 672).

2. The case of Briones-Vasquez v. Court of Appeals, 450 SCRA 482, 491-492, describes nunc pro tunc judgments in the following manner:

“Nunc pro tunc judgments have been defined and characterized by this Court in the following manner:

The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. If the court has not rendered a judgment that it might or should have rendered, or if it has ren-dered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment. Hence a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. In all cases the exercise of the power to enter judgments nunc pro tunc presupposes the actual rendition of a judgment,


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and a mere right to a judgment will not furnish the basis for such an entry.

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previ-ously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in place of the one it did erroneously render, nor to supply nonaction by the court, however erroneous the judgment may have been. (Wilm- erding v. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)

A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake. (Perkins v. Haywood, 31 N. E., 670, 672.)”

Judgment upon a compromise (Bar 1996) 1. This is a judgment rendered by the court on the basis of a

compromise agreement entered into between the parties to the action (Diamond Builders Conglomeration v. Country Bankers Corp., 540 SCRA 194).

2. A compromise has upon the parties the effect of res judicata, and under the principle of res judicata, an issue which had already been laid to rest by the parties themselves can no longer be relitigated.

3. Substantive law does not require a court approval for the res judicata effect of a compromise agreement to attach. However, there shall be no execution of the compromise agreement except in compliance with a judicial compromise (Art. 2037, Civil Code of the Philippines).

A compromise is perfected by mere consent, manifested by the meeting of the offer and the acceptance upon the thing and the cause which constitutes the contract. It is perfected upon the meeting of the minds and does not need a judicial


approval for its perfection (Villaluz v. Ligon, 468 SCRA 486, 504-505).

4. Under Article 2028 of the Civil Code, a compromise agreement is defined as “a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced.” A compromise is a form of amicable settlement that is not only allowed but also encouraged in civil cases (Harold v. Aliba, 534 SCRA 178, 486).

Once approved by the court, a judicial compromise is not appealable and it thereby becomes immediately executory. This rule must be understood to refer and apply only to those who are bound by the compromise and, on the assumption that they are the only parties to the case, the litigation comes to an end except only as regards to its compliance and the fulfillment by the parties of their respective obligations thereunder.

The reason for the rule, said the Court in Domingo v. Court of Appeals, 325 Phil. 469, is that when both parties so enter into the agreement to put a close to a pending litigation between them and ask that a decision be rendered in conformity therewith, it would only be “natural to presume that such action constitutes an implicit waiver of the right to appeal” against that decision. The order approving the compromise agreement thus becomes a final act, and it forms part and parcel of the judgment that can be enforced by a writ of execution unless otherwise enjoined by a restraining order.

5. In any event, the compromise agreement cannot bind a party who did not voluntarily take part in the settlement itself and give specific individual consent. It must be remembered that a compromise agreement is also a contract; it requires the consent of the parties, and it is only then that the agreement may be considered as voluntarily entered into (Philippine Journalists, Inc. v. NLRC, 501 SCRA 75).

6. If one of the parties refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand (Art. 2041, Civil Code of the Philippines; Diamond Builders Conglomeration v. Country Bankers Corp., 540 SCRA 194).


7. To assail a judgment by compromise, there must be a proper motion to set aside the compromise on the ground that the compromise agreement was obtained either by fraud, violence, intimidation, falsity of documents or some other vices of consent (Cadano v. Cadano, 49 SCRA 33; Art. 2038, Civil Code of the Philippines).

8. There is jurisprudence holding that if such motion is denied, appeal may be taken from the order of denial of the motion to set aside the compromise agreement (De los Reyes v. Ugarte, 75 Phil. 505; Enriquez v. Padilla, 77 Phil. 373; Salvador v. Ortoll, 343 SCRA 658, 668). This ruling must be deemed superseded or modified by Sec. 1(d) of Rule 41 which declares as non-appealable an order denying a motion to set aside a judgment by . . . compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent.

9. A motion to set aside the compromise on a ground vitiating consent applies only to a judgment upon a compromise. When the compromise is not judicial and is a result of the contract between the parties, the proper remedy is an action to annul the compromise. A compromise agreement obtained by mistake, fraud, violence, intimidation, undue influence, or falsity of documents is subject to the provisions of Art. 1330 of the Civil Code. This provision declares the contract as voidable. A voidable contract under Art. 1390 of the Civil Code is subject to annulment (See also Art. 2038, Civil Code of the Philippines).

Judgment upon a confession (cognovit actionem) This is a judgment rendered by the court when a party

expressly agrees to the other party’s claim or acknowledges the validity of the claim against him

D. JUDGMENT ON THE PLEADINGS (Bar 1999; 1993; 1978)

Nature of judgment on the pleadings 1. The concept of a judgment on the pleadings will not apply

when no answer is filed. It will come into operation when


an answer is served and filed but the same fails to tender an issue or admits the material allegations of the adverse party’s pleading (Sec. 1, Rule 34, Rules of Court; Bar 1999).

2. An answer fails to tender an issue when the material allegations of the other party are admitted or not specifically denied by the pleader. Under the rules, material allegations of the complaint not specifically denied are deemed admitted (Sec. 11, Rule 8, Rules of Court).

Motion required A judgment on the pleadings cannot be rendered by the court

motu proprio. It can be done only where there is a prior motion to the effect filed by the appropriate party (Sec. 1, Rule 34, Rules of Court; Bar 1999).

Cases where judgment on the pleadings will not apply 1. In the following cases, a judgment on the pleadings will

not lie: (a) actions for the declaration of nullity of a marriage; (b) actions for annulment of marriage; and (c) actions for legal separation (Sec. 1, Rule 34, Rules of

Court). 2. In the above cases, the material facts alleged in the

complaint shall always be proved (Sec. 1, Rule 34, Rules of Court).

E. SUMMARY JUDGMENT (Bar 1989)

Nature of summary judgment (Bar 1986; 1989; 1996; 1999) 1. A summary judgment, also called accelerated judgment,

is proper where, upon a motion filed after the issues had been joined and on the basis of the pleadings and papers filed, the court finds that there is no genuine issue as to any material fact except as to the amount of damages (Ley Construction and Development Corporation v. Union Bank of the


Philippines, 334 SCRA 443; Raboca v. Velez, 341 SCRA 543; Bar 1999; 1996; 1986).

“A summary judgment is granted to settle expedi-tiously a case if, on motion of either party, there appears from the pleadings, depositions, admissions, and affida-vits that no important issues of fact are involved, except the amount of damages, x x x” (Ybiernas v. Tanco-Gabal- don, G.R. No. 178925, June 1, 2011).

2. What triggers a summary judgment is the absence of a genuine factual issue. It is not proper where there are factual issues to be resolved by the presentation of evidence. Even if there is a complicated question of law if there is no issue as to the facts, a summary judgment is not barred (Velasco v. Court of Appeals, 329 SCRA 392; Garcia v. Court of Appeals, 336 SCRA 475).

3. In an action for foreclosure of mortgage for example, the material issues are the existence of the debt and its demandability. When the defendant admits the existence of the debt and raises an issue as to the demandability of the debt or the interest rate involved because of an alleged contemporaneous agreement between the parties, the issue tendered is sham, fictitious, or patently unsubstantial. A summary judgment would be proper because there is no genuine issue (Spouses Agbada v. Inter-Urban Developers, 389 SCRA 430, 432).

Where only the genuineness and the due execution of the promissory note are the matters deemed admitted for the failure of the defendant to deny the same under oath, a summary judgment is not proper (Bar 1986).

In an action for a sum of money, where the debt and the fact of its nonpayment is admitted and the only issue raised is the rate of interest or the damages payable, there is no genuine issue and a summary judgment may be rendered upon proper motion.

4. The Court, in Asian Construction and Development Corporation v. Philippine Commercial and Industrial Bank,


488 SCRA 192, 203, reiterated the principles governing summary judgment as follows:

. . Under the Rules, summary judgment is appro-priate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as pre-scribed by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact.”

5. A “genuine issue” is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to the facts, and summary judgment is called for. The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial (Philippine Bank of Communications v. Go, 642 SCRA, 693, 705-706, February 14, 2011).

6. The trial court cannot motu proprio decide that sum-mary judgment on an action is in order. Under the applicable provisions of Rule 35, the defending party or the claimant, as the case may be, must invoke the rule on summary judgment by filing a motion. The adverse party must be notified of the motion for summary judgment and furnished with supporting affidavits, depositions or admissions before hearing is conducted. More importantly, a summary judgment is permitted only if there is no genuine issue as to any material fact and


a moving party is entitled to a judgment as a matter of law (Pineda v. Heirs ofEliseo Guevara, 515 SCRA 627, 637-638).

Determination of the amount of damages; not necessary to finality of judgment

In a case, the petitioners argued that an appeal could not be taken from the trial court’s decision because it failed to settle the issue on damages and, hence, did not completely dispose of all the issues in the case. Hence, the petitioners contended that the appeal could not have been perfected and the Court of Appeals could not have acquired jurisdiction over the case. Petitioners posited that trial should have proceeded to settle the issue on damages.

The Court explained:

“The issue of whether the RTC judgment is a final judgment is indeed crucial. If the judgment were not fi-nal, it would be an improper subject of an appeal. Hence, no appeal would have been perfected before the CA, and the latter would not have acquired jurisdiction over the entire case, including the motion for new trial. But more importantly, only a final judgment or order, as opposed to an interlocutory order, may be the subject of a motion for new trial.

A final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do in respect thereto, such as an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right, or a judg-ment or order that dismisses an action on the ground of res judicata or prescription, for instance. Just like any other judgment, a summary judgment that satisfies the requirements of a final judgment will be considered as such.

A summary judgment is granted to settle expedi-tiously a case if, on motion of either party, there appears from the pleadings, depositions, admissions, and affida-vits that no important issues of fact are involved, except


the amount of damages. The RTC judgment in this case fully determined the rights and obligations of the parties relative to the case for quieting of title and left no other issue unresolved, except the amount of damages. Hence, it is a final judgment.

In leaving out the determination of the amount of damages, the RTC did not remove its summary judgment from the category of final judgments. In fact, under Sec-tion 3, Rule 35 of the Rules of Court, a summary judg-ment may not be rendered on the amount, of damages. although such judgment may be rendered on the issue of the right to damages (Ybiernas v. Tanco-Gabaldon, G.R. No. 178925, June 1, 2011; Underscoring supplied).

In Ybiernas, the Court, citing Jugador v. De Vera, 94 Phil. 704, also distinguished between the determination of the amount of damages and the issue of the right to damages itself in case of a summary judgment. It declared that said judgment may be rendered except as to the amount of damages and a summary judgment may be entered on the issue relating to the existence of the right to damages (Ybiernas v. Tanco- Gabaldon, G.R. No. 178925, June 1, 2011).

Distinctions between a judgment on the pleadings and a summary judgment (Bar 1989)

1. In a judgment on the pleadings there is an absence of a factual issue in the case because the answer tenders no issue at all. A summary judgment involves an issue, but the issue is not genuine (Narra Integrated Corporation v. Court of Appeals, 344 SCRA 781, 786-787). In a summary judgment, the issue is only as to the amount of damages but not as to any material fact (Sec. 3, Rule 35, Rules of Court).

2. A motion for judgment on the pleadings is filed by a claiming party like a plaintiff or a counterclaimant (Sec. 1, Rule 34, Rules of Court). A motion for summary judgment may be filed by either the claiming or the defending party (Secs. 1, 2, Rule 35, Rules of Court).

3. judgment on the pleadings is based on the pleadings alone (Sec. 1, Rule 34, Rules of Court). A summary judg


ment is based on the pleadings, affidavits, depositions and admissions (Sec. 3, Rule 35, Rules of Court).

4. Only a three-day notice to the adverse party is required prior to the date of hearing in a motion for judgment on the pleadings based on the regular rules on motions (Sec. 4, Rule 15, Rules of Court). A ten-day notice to the adverse party is required in a motion for summary judgment. The adverse party in turn may serve opposing affidavits, depositions or admissions at least three days before the hearing ("Sec. 3, Rule 35, Rules of Court).

Judgment against an entity without a juridical personality This judgment should be related to Sec. 15 of Rule 3. Under

this provision, when two or more persons not organized as an entity with juridical personality nevertheless transact with third persons under a common name, they may be sued under the name by which they are generally or commonly known. Thus, if Jose, Pedro, and Juan, transact with other people under the name, “ABC Boys,” they may be sued under that name. Under Sec. 6 of Rule 36, the judgment shall be actually against the persons who form the entity without a juridical personality and the judgment shall set out their individual or proper names, if known.

Entry of judgment; date thereof 1. The entry of judgment refers to the physical act

performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory.

The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executory (Sec. 2, Rule 36, Rules of Court).

2. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule 36), the date of the entry of judgment is the date when the judgment becomes final and executory regardless of the date


when the physical act of entry was done. Thus, if the judgment becomes final and executory on March 15, because no appeal, motion for new trial or motion for reconsideration has been filed, the judgment is deemed entered simultaneously on March 15 by operation of the rule even if the actual physical act of entry of the judgment was done on another date like March 30. This new rule eliminates confusion in determining the date of entry of a judgment. Prior to this rule, the date when a judgment becomes final and executory was not necessarily the date of its entry.

Sec. 2 of Rule 36 clearly provides that “The date of finality of the judgment or final order shall be deemed to be the date of its entry.”

Relevance of knowing the date of the entry of a judgment There are some proceedings the filing of which is reckoned

from the date of the entry of judgment. Examples: (a) The execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. 6, Rule 39, Rules of Court)-, (b) The filing of a petition for relief has, as one of its periods, not more than six (6) months from the entry of the judgment or final order (Sec. 3, Rule 38, Rules of Court).

— oOo —

Chapter IX POST JUDGMENT REMEDIES

I - REMEDIES BEFORE A JUDGMENT BECOMES FINAL AND EXECUTORY

Post judgment remedies available to the aggrieved party (Bar 2006)

The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory.

1. Before a judgment becomes final and executory, the aggrieved or losing party may avail of the following remedies:

(a) Motion for reconsideration;

(b) Motion for new trial; and

(c) Appeal. A judgment becomes final and executory upon the expiration

of the period to appeal therefrom and no appeal has been perfected (Sec. 1, Rule 39, Rules of Court).

2. After the judgment becomes executory, the losing party may avail of the following:

(a) Petition for relief from judgment;

(b) Action to annul a judgment;

(c) Certiorari; and

(d) Collateral attack of a judgment.

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A. Motion for Reconsideration (Rule 37) (Bar 2009)

Object of the motion 1. The motion for reconsideration under Rule 37 is one that

is directed against a judgment or a final order. It is not the motion for reconsideration of an interlocutory order which normally precedes a petition for certiorari under Rule 65.

2. Be it noted that a motion for reconsideration of a judgment is a prohibited motion in a case that falls under summary procedure (Sec. 19[c], TV, Rules on Summary Procedure; Bar 1989,1990).

The motion is likewise prohibited under Sec. 14(c) of the Rule of Procedure in Small Claims Cases (A.M. No. 08-8-7- SC).

When to file 1. A motion for reconsideration of a judgment or a final

order is filed within the period for appeal (Sec. 1, Rule 37, Rules of Court). No motion for extension of time to file a motion for reconsideration shall be allowed (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court).

2. The period for appeal referred to in the immediately preceding number is within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec. 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule 45, Rules of Court).

Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order (Sec. 3, Rule 41, Rules of Court). A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals (Sec. 3, Rule 40, Rules of Court).

3. The abovementioned fifteen (15)-day period begins to run upon receipt of notice of the decision or final order appealed from. Such period has been considered to begin upon receipt of notice by the counsel of record, which is considered notice to

CHAPTER IX POST JUDGMENT REMEDIES

559

the parties. Service of judgment on the party represented by counsel is not considered the official notice and receipt of the judgment.

4. Service upon the parties’ counsels of record is tantamount to service upon the parties themselves, but service upon the parties themselves is not considered service upon their lawyers. The reason is simple — the parties, generally, have no formal education or knowledge of the rules of procedure, specifically, the mechanics of an appeal or availment of legal remedies; thus, they may also be unaware of the rights and duties of a litigant relative to the receipt of a decision. More importantly, it is best for the courts to deal only with one person in the interest of orderly procedure — either the lawyer retained by the party or the party himself if he does not intend to hire a lawyer (De los Santos v. Elizalde, 514 SCRA 14, 27).

5. It has been held once and for all that notice or service made upon a party who is represented by counsel is a nullity. As a rule, notice to the client and not to his counsel of record is not notice in law unless for instance when the court or tribunal orders service upon the party or when the technical defect in the manner of notice is waived (Heirs of Benjamin Mendoza v. Court of Appeals, 565 SCRA 506, 512-513).

Effect of the filing of the motion on the period to appeal The filing of a timely motion for reconsideration interrupts the

period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court).

Grounds for a motion for reconsideration 1. The motion for reconsideration must be in writing, a

written notice of which must be served on the adverse party, and may be anchored on any of the following grounds:

(a) that the damages awarded are excessive; (b) that the evidence is insufficient to justify the decision or

final order; or (c) that the decision or final order is contrary to law (Sec. 1,

Rule 37, Rules of Court).


2. It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions (Sec. 2, Rule 37, Rules of Court). Non-compliance with this requirement would reduce the motion to a mere pro forma motion. Under the explicit provisions of the rule (Sec. 2, Rule 37), a pro forma motion for reconsideration shall not toll the reglementary period of appeal.

Pro forma motion (Bar 2011) 1. A pro forma motion is one which does not satisfy the

requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87, 93).

2. A motion for reconsideration is deemed pro forma if the same does not specify the findings or conclusions in the judgment which are not supported by the evidence or contrary to law, making express reference to the pertinent evidence or legal provisions. It is settled that although a motion for reconsideration may merely reiterate issues already passed upon by the court that by itself does not make it pro forma and is immaterial because what is essential is compliance with the requisites of the Rules.

3. In the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration, or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence, or (3) it failed to substantiate the alleged errors, or (4) it merely alleged that the decision in question was contrary to law, or (5) the adverse party was not given notice thereof.

Where the circumstances of a case do not show an intent on the part of the pleader to merely delay the proceedings,


561

and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. The doctrine relating to pro forma motions has a direct bearing upon the movant’s valuable right to appeal. It would be in the interest of justice to accord the appellate court the opportunity to review the decision of the trial court on the merits than to abort the appeal by declaring the motion pro forma, such that the period to appeal was not interrupted and had consequently lapsed (Philippine National Bank v. Paneda, 515 SCRA 639, 649 citing Marina Properties Corporation v. Court of Appeals, 294 SCRA 273).

Resolution of the motion The motion shall be resolved within thirty (30) days from the

time it is submitted for resolution (Sec. 4, Rule 37, Rules of Court).

The “fresh period” rule; Neypes rule 1. If the motion is denied, the movant has a “fresh period” of

fifteen (15) days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. This new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. This “fresh period” rule applies not only to Rule 41 governing appeals from the Regional Trial Courts but also to Rule 40 governing appeals from the Municipal Trial Court to the Regional Trial Court; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals, and Rule 45 governing appeals by certiorari to the Supreme Court. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules and to afford fair opportunity to appeal their cases and to give the trial court another opportunity to review the case and, in the process, minimize any error of judgment (Neypes v. Court of Appeals, 469 SCRA 633).


2. Prior to Neypes, if a party filed a motion for new trial or a motion for reconsideration, he only had the remaining time of the 15-day appeal period to file the notice of appeal. This rule has been applied in previous cases like in Foster- Gallego v. Galang, 435 SCRA 275, 287, wherein the court held that the petitioner lost his right to appeal when he exceeded the fifteen-day period granted by law. In the case, the petitioner filed his motion for reconsideration on the thirteenth day of his fifteen-day period to appeal. The filing of a motion for reconsideration, ruled the Court, merely suspends the running of the period to appeal and once the court denies the motion, the aggrieved party has only the remaining period from receipt of the order of denial to file his appeal.

Neypes declared:

“In Quelnan and Apuyan, both petitioners filed a motion for reconsideration of the decision of the trial court. We ruled there that they only had the remaining time of the 15-day appeal period to file the notice of ap-peal. We consistently applied this rule in similar cases premised on the long-settled doctrine that the perfection of an appeal in the manner and within the period permit-ted by law is not only mandatory but also jurisdictional. The rule is also founded on deep-seated considerations of public policy and sound practice that, at risk of occasional error, the judgments and awards of courts must become final at some definite time fixed by law (Neypes v. Court of Appeals, 469 SCRA 633, 641; The cases referred to by the Court are Quelnan v. VHF Phil., 433 SCRA 631 and Apuyan v. Haldeman, 438 SCRA 402).

3. The Court in Neypes explains:

“The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43, and 45, the Court allows extensions of time, based on justifiable and


The facts had their origins in an action to revive a judgment filed in the same court which more than five years ago, rendered a judgment in an action for forcible entry against, the defendant. The defendant opposed the action but the justice of the court declared the judgment revived. The subsequent appeal to the Court of First Instance was dismissed and plaintiff went to the Supreme Court on a question of law — whether or not a justice of the peace court has the authority to revive its own judgment.

In resolving the issue, the Supreme Court ruled that the Judiciary Act of 1948 gave justice of the peace courts jurisdiction over actions of forcible entry and unlawful detainer “and also empowers them .. .to issue all processes necessary to enforce their judgments and orders. Needless to say, the revival of a judgment is a necessary step in its enforcement...”

The reason for the decision is clear: since the court has jurisdiction over an action for forcible entry, it also has the power to revive its own judgment as a necessary step for its execution. The rationale of Torre franca in sustaining the power of the court to revive its own judgment is clearly predicated on the jurisdiction of the trial court over a case of forcible entry. The pronouncements in Torrefranca obviously assumes that the revived judgment is a continuation of the old judgment and viewed the revival of the judgment as merely incidental to or ancillary to the execution of the original judgment. The decision did not consider the rule that the cause of action of the original judgment is separate and distinct from that of the cause of action to revive a judgment which, under the decisions more recent than those in Torrefranca, is an entirely new and independent action. In a nutshell, the rationale of the decision in Torrefranca does not fall squarely with the more recent pronouncements of the Court that an action to revive a judgment is a new cause of action and not a mere continuation of the original action.

The action to revive a judgment is unlike the remedy of scire facias, which the Court declared is a mere incident of the original suit and must be instituted in the court where said suit was brought. Such remedy does not exist in the Philippines and

CHAPTER X 655 EXECUTION AND SATISFACTION OF JUDGMENTS

the action upon which the judgment sought to be enforced is rendered. Revival of judgment is premised on the assumption that the decision to be revived, either by motion or by independent action, is already final and executory (Saligumba v. Palanog, 573 SCRA 8,15-16 citing Juco v. Heirs of Tomas Siy Chung Fu, 573 SCRA 8, 8. It is “an original action, not a mere incident of the primitive suit or a mere auxiliary or supplemental remedy” (Aldequer v. Gemelo, 68 Phil. 421, 423).

The purpose of the new action is not to reexamine and retry issues already decided and the cause of action of this new action is the judgment to be revived and no identity of causes of action can be said to exist between the first and the second actions (Caiha v. Court of Appeals, 239 SCRA 252, 262). The consideration of any issue affecting matters that could have been raised in the previous case must be deemed as definitely foreclosed (Philippine Reconstruction Corporation, Inc. v. Aparente, 45 SCRA 217, 222). It is not meant to retry the case all over again (Enriquez v. Court of Appeals, 372 SCRA 372, 376).

Comment: If the action to revive a judgment (or an action upon a judgment according to Aldeguer v. Gemelo, 68 Phil. 421) is a new cause of action and is not a continuation of the old, it should not, in this sense, be dependent upon the previous action for its jurisdictional requirements and does not necessarily have to be filed in the same court which rendered the judgment.

It is submitted that the new action, i.e., to revive the judgment would necessarily raise the fundamental issues of whether or not the plaintiff has a right to have the judgment revived and to have a new right of enforcement from its revival, issues that by nature are incapable of pecuniary estimation. Inevitably, a litigant may find himself in a situation where he files the action in the Regional Trial Court to revive a judgment rendered by a Municipal Trial Court.

It is submitted that it is in this light that the 1957 case of Torrefranca, et al. v. Albiso, 102 Phil. 732, should be reexamined.


judgment. The ruling in Deloso practically abandoned Bondoc on the matter of the reckoning point of the prescriptive period. Bondoc however, was resurrected in the present provision of Sec. 6 of Rule 39 which declares in its last sentence that “The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.”

5. The Supreme Court had long ago ruled that after the lapse of five (5) years, the judgment “is reduced to a mere right of action in favor of the person whom it favors which must be enforced, as are all ordinary actions, by the institution of a complaint in the regular form” (Compania General de Tabacos, v. Martinez and Nolan, 29 Phil. 515, 520-521; Aldeguer v. Gemelo, 68 Phil. 421, 423).

If the prevailing party fails to have the decision enforced by a motion after the lapse of five years from the date of entry of the judgment, the said judgment is reduced to a right of action which must be enforced by the institution of a complaint in a regular court within ten years from the time the judgment became final (Bausa v. Heirs of Juan Dino, 563 SCRA 533, 540-541).

6. Jurisprudence also specifically declares that: "... a proceeding by separate ordinary action to revive a judgment is a new action rather than a continuation of the old, and results in a new judgment constituting a new cause of action, upon which a new period of limitation begins to run” (Philippine National Bank v. Bondoc, 14 SCRA 770, 772).

7. As previously held, an action for revival of judgment is no more than a procedural means of securing the execution of a previous judgment which has become dormant after the passage of five years without it being executed upon motion of the prevailing party. It is not intended to re-open any issue affecting the merits of the judgment debtor’s case nor the propriety or correctness of the first judgment. An action for revival of judgment is a new and independent action wherein the cause of action is the decision itself and not the merits of

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old, original judgment (Philippine National Bank v. Bondoc, 14 SCRA 770, 770-772).

The Court in PNB v. Bondoc, explains:

“A judgment is revived only when the same cannot be enforced by motion, that is, after five years from the time it becomes final. A revived judgment can be enforced by motion within five years from its finality. After said five years, how may the revived judgment be enforced? Appellee contends that by that time ten years or more would have elapsed since the first judgment becomes fi-nal, so that an action to enforce said judgment would then be barred by the statute of limitations.

Appellee’s theory relates the period of prescription to the date the original judgment became final. Such a stand is inconsistent with the accepted view that a judgment reviving a previous one is a new and different judgment. The inconsistency becomes clearer when we consider that the causes of action in the three cases are different. In the original case, the action was premised on the unpaid promissory note signed by Joaquin Bondoc in favor of the Philippine National Bank; in the second case, the Philippine National Bank’s cause of action was the judgment rendered in Civil Case No. 8040; and in the present case, the basis is the judgment rendered in Civil Case No. 30663. Parenthetically, even the amounts in-volved are different.

The source of Section 6 aforecited is Section 447 of the Code of Civil Procedure which in turn was derived from the Code of Civil Procedure of California. The rule followed in California in this regard is that a proceeding by separate ordinary action to revive a judgment is a new action rather than a continuation of the old, and results in a new judgment constituting a new cause of action, upon which a new period of limitations begins to run.”

Some rulings (PNB v. Deloso, 32 SCRA 266; Luzon Surety Co., Inc. v. IAC, G.R. No. 72645, June 30, 1987) held that the ten-year period should run from the finality of the original judgment and not from the finality of the revived


2. This action to revive a judgment in Sec. 6 of Rule 39 is not the “revival of judgment” referred to in Sec. 34 of Rule 39 where the terms are actually used in the Rules. In the latter rule, the revival of judgment is not sought for by the judgment obligee or the prevailing party. It is sought for by the purchaser of a real property that was sold in an execution sale. Despite being the purchaser, he was not able to acquire possession of the property bought by him or if he ever did acquire possession, he was evicted therefrom for one reason or another as when the judgment under which the sale was con-ducted was reversed, or the property sold to him was actually exempt from execution, or there was a rightful claimant to the property. The purchaser, under such situation, is allowed by the Rules to file a motion in the same action or in a separate action for the purpose of recovering from the judgment obligee the price he paid (including interest) for the property in the execution sale. He may, as an option, also file a motion to revive the judgment in his name to recover the price with interest.

In Sec. 34, the judgment has actually been executed unlike in Sec. 6 where the judgment has not been executed on motion within the five-year period set by the Rules. Sec. 34 seeks to revive the judgment that was already executed.

3. When a judgment is revived under Sec. 6 of Rule 39, such revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action also before it is barred by the statute of limitations (Sec. 6, Rule 39, Rules of Court).

4. A revived judgment is deemed a new judgment separate and distinct from the original judgment. It is not a continuation of the original judgment. The action to revive the judgment is a new action and results in a new judgment constituting a new cause of action with a new period of limitations.

Hence, the ten (10) year period to revive the revived judgment shall commence to run from the date of the finality of the revived judgment and not from the date of finality of the


3. It was held that if the writ of execution was issued and the levy made within five years from the entry of the judgment, the auction sale may be made even after the five- year period. The sale of the property and the application of the proceeds are merely the means to carry out the writ of execution and a levy already validly made. Accordingly, the levy is the essential act by which the property is set apart for the satisfaction of the judgment (Government v. Echaus, 71 Phil. 318, 320; Vda. De Quiambao v. Manila Motor Co., 3 SCRA 444, 450). The sale must, however, be made within ten years during which the judgment can be enforced (Ansaldo v. Fidelity & Surety Company, 88 Phil. 547, 548; Jalandoni v. PNB, 108 SCRA 102).

Revival of judgment (Bar 1997) 1. An action for revival of judgment is no more than a

procedural means of securing the execution of a previous judgment which has become dormant after the passage of five years without it being executed upon motion of the prevailing party. It is not intended to re-open any issue affecting the merits of the judgment debtor’s case nor the propriety or correctness of the first judgment. An action for revival of judgment is a new and independent action, different and distinct from either the recovery of property case or the reconstitution case, wherein the cause of action is the decision itself and not the merits of the action upon which the judgment sought to be enforced is rendered. Revival of judgment is premised on the assumption that the decision to be revived is already final and executory (Saligumba v. Palanog, 573 SCRA 8,15-16).

The action to revive a judgment must be filed within ten (10) years from the date the judgment became final because an action to enforce a judgment prescribes in ten (10) years from the finality of the judgment (Art. 1144[3] in relation to Art. 1152, Civil Code of the Philippines). Since the date of the finality of the judgment or final order shall be deemed to be the date of its entry (Sec. 2, Rule 36, Rules of Court), the prescriptive period is supposed to run from the date of entry of the judgment.


in the hands of the sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to implement it in accordance with its mandate. For it is only by doing so that he could ensure that the order is executed without undue delay. It cannot be overemphasized that sheriffs play an important part in the administration of justice, because they are tasked to execute the final judgments of courts. If not enforced, such decisions are empty victories on the part of the prevailing parties. Indeed, the execution of a final judgment is “the fruit and end of the suit and is the life of the law” (Cebu International Finance Corporation v. Cabigon, 515 SCRA 616, 622).

Modes of execution of a judgment (Bar 1982; 1987; 1997) 1. There are two modes of executing a final and executory

judgment, to wit: (a) execution by motion if the enforcement of the judgment is

sought within five (5) years from the date of its entry; and (b) execution by independent action if the five-year period

has elapsed and before it is barred by the statute of limitations (Sec. 6, Rule 39, Rules of Court).

2. The rule is that the court could issue a writ of execution by motion within five (5) years from finality of the decision,. A writ of execution issued after the expiration of that period is null and void. There is a need for the interested party to file an independent action for revival of judgment. The judgment may be enforced after the lapse of this period and before the same is barred by the statute of limitations, by instituting an ordinary civil action. The reason is that after the lapse of the five-year period, the judgment is reduced to a mere right of action, which judgment must be enforced, as all other ordinary actions, by the institution of a complaint in the regular form. Such action must be filed within ten (10) years from the date the judgment became final (Terry v. People, 314 SCRA 669, 673; Bar 2007) which is now the date of its entry (Sec. 2, Rule 36, Rules of Court).


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There maybe instances, however, when errors may be committed prejudicial to the rights of a party and do call for correction by a superior court. In these exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error or certiorari) or by a special civil action of certiorari, prohibition, or mandamus.

These exceptional circumstances may prevent the execution of a judgment or allow the quashal of a writ of execution already issued. Examples of these grounds are:

(a) when the writ of execution varies the judgment; (b) when there has been a change in the situation of the

parties making execution inequitable or unjust; (c) when execution is sought to be enforced against property

exempt from execution; (d) when it appears that the controversy has never been

submitted to the judgment of the court; (e) when the terms of the judgment are not clear enough and

there remains room for interpretation thereof; (f) when it appears that the writ of execution has been

improvidently issued; (g) when it appears that the writ of execution is defective in

substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority (Reburiano v. Court of Appeals, 301 SCRA 342, 349 citing Limpin v. IAC, 147 SCRA 516, 522-523).

Duty of sheriff Well-settled is the rule that a sheriffs duty in the execution of

the writ is purely ministerial; he is to execute the order of the court strictly to the letter. He has no discretion whether to execute the judgment or not. When a writ is placed


Note: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law (Art. 2028, Civil Code of the Philippines).

(c) When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. 5 of Rule 38. Also, when execution of the judgment is enjoined by a higher court;

(d) When the judgment sought to be executed is conditional (Co-Unjieng v. Hijos Mabalacat Sugar Company, 70 Phil. 380, 384) or when the judgment sought to be executed is incomplete (Del Rosario v. Villegas, 49 Phil. 634, 644; Ignacio v. Hilarion, 76 Phil. 605);

(e) When facts and circumstances transpire which would render execution inequitable or unjust (Bachrach Corporation v. Court of Appeals, 296 SCRA 487, 495);

(f) When execution is sought more than five (5) years from its entry without the judgment having been revived (Cunanan v. Court of Appeals, 25 SCRA 263, 264).

(g) When execution is sought against property exempt from execution under Sec. 13 of Rule 39; or

(h) When refusal to execute the judgment has become imperative in the higher interest of justice (Philippine Veterans Bank v. Intermediate Appellate Court, 78 SCRA 645; So v. Court of Appeals, 388 SCRA 107, 111).

Quashal of a writ of execution (Bar 2009) It is a well-entrenched rule that the execution of final and

executory judgments may no longer be contested and prevented, and no appeal should lie therefrom. Otherwise, cases would be interminable, and there would be negation of the overmastering need to end litigations.


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4. After a final judgment has been rendered by the Supreme Court, or even by a trial court for that matter, it is the duty of the court to enforce the judgment according to its terms. In other words, where the judgment of an appellate court has become final and executory and is returned to the lower court, the only function of the latter is the ministerial act of carrying out the decision and issuing the writ of execution (Sia v. Villanueva, 504 SCRA 43, 51).

Lifetime of the writ of execution (Bar 1995) The writ shall continue in effect during the period within

which the judgment may be enforced by motion (Sec. 14, Rule 39, Rules of Court). Hence, the writ is enforceable within the five-year period from entry of judgment as provided for in Sec. 6 of Rule 39 because within that period, the writ may be enforced by motion. Under the former Sec. 11 of Rule 39 of the old Rules, the lifetime of the writ was sixty (60) days from the receipt of the writ by the officer required to enforce it.

When execution will be denied 1. After a judgment has become final and executory, the

rule is that execution becomes the ministerial duty of the court (Fideldia v. Songcuan, 465 SCRA 218, 226).

2. The rule, however, is far from absolute. The trial court may refuse to have the judgment executed in certain cases, as:

(a) When the judgment has already been executed by the voluntary compliance thereof by the parties (Cunanan v. Court of Appeals, 25 SCRA 263, 264); Note: There is no need for execution in this case because the judgment has already been satisfied by the voluntary act of the parties. This is a situation where there is a satisfaction of the judgment without need for a writ of execution issued by the court.

(b) When the judgment has been novated by the parties (Dormitorio v. Fernandez, 72 SCRA 366, 393).


2. The writ may not vary the terms of the judgment to be executed (Buan v. Court of Appeals, 235 SCRA 424, 432). Thus, if the judgment does not provide for the payment of interest, the writ of execution cannot modify the judgment by requiring the judgment obligor to pay interest. That part of the writ imposing interest is void (Solidbank Corporation v. Court of Appeals, 379 SCRA 159, 166). An order of execution which does not substantially conform to the dispositive portion of the decision sought to be executed or which varies or goes beyond the terms of the judgment it seeks to enforce is null and void (Lao v. King, 500 SCRA 280, 297).

3. That a writ of execution must conform to the judgment which is to be executed, substantially to every essential particular thereof, is settled. It may not thus vary the terms of the judgment it seeks to enforce, nor go beyond its terms. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has no validity (Greater Metropolitan Manila Solid Waste Management Committee v. Jancom Environmental Corporation, 494 SCRA 280, 297).

Thus, in the above cited case, where a contract has been declared by final judgment by the Supreme Court as perfected and valid yet is still unimplementable because of the absence of approval by the President of the Philippines, a writ of execution directing the implementation of the contract is void.

Declared the Court: “In issuing the writ of execution, the trial court in

effect ordered the enforcement of the contract despite the High Court’s unequivocal pronouncement that albeit val-id and perfected, the contract shall become effective only upon approval by the President. Indubitably, the alias writ of execution varied the tenor of this Court’s judg-ment, went against essential portions and exceeded the terms thereof.

x x x The execution directed by the trial court being out of

harmony with the judgment, legal implications cannot save it from being found to be fatally defective” (Greater Metropolitan Manila Solid Waste Management Committee v. Jancom Environmental Corporation, supra at 299).


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the judgment obligee a remedy. He may file a motion with the appellate court to direct the court of origin, in the interest of justice, to issue the writ of execution (Sec. 1, Rule 39, Rules of Court).

No appeal from an order of execution It is a well-recognized rule that an appeal may be taken from a

judgment or final order that completely disposes of the case (Sec. 1, Rule 41, Rules of Court).

The same provision likewise provides for matters from which no appeal maybe taken from. One of which is an order of execution.

“No appeal may be taken from an order of execution” (Sec. l[e], Rule 41, Rules of Court). A party desiring to assail an order of execution may instead file an appropriate special civil action under Rule 65 of the Rules of Court (Sec. 1, Rule 41, Rules of Court).

Form and contents of writ of execution The writ of execution is issued in the name of the Republic of

the Philippines and shall state (a) the name of the court which granted the motion, (b) the case number and title, (c) the dispositive portion of the judgment or order subject of the execution, and (d) shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms (Sec. 8, Rule 39, Rules of Court).

Writ of execution should conform to the dispositive portion of the judgment

1. The writ of execution should conform to the dispositive portion of the decision to be executed and the execution is void if it is in excess of and beyond the original judgment or award for it is a settled general principle that a writ of execution must conform strictly to every essential particulars of the judgment promulgated (Ex-Bataan Veterans Security Agency, Inc. v. NLRC, 250 SCRA 418, 427).


3. A motion for the issuance of a writ of execution shall contain a notice to the adverse party. A motion which does not contain a notice of hearing of the time and place for the hearing of the motion as required by Secs. 4 and 5 of Rule 15 of the Rules of Court, is a worthless piece of paper which the clerk has no right to receive and which the court has no authority to act upon (Pallada v. Regional Trial Court of Kalibo Aklan, Br. 1, supra).

Because of the present phraseology of Sec. 1 of Rule 39, rulings like those made in De Mesa v. Court of Appeals, 231 SCRA 773, 781, to the effect that where execution is a matter of right, the judgment debtor need not be given an advanced notice of the application for execution nor be afforded a prior hearing thereon, must necessarily be deemed superseded.

Where application for execution made 1. Execution shall be applied for in the court of origin. If an

appeal has been duly perfected and finally resolved, the execution may be applied for also in the court of origin on motion of the judgment obligee (Sec. 1, Rule 39, Rules of Court).

2. In filing a motion for execution of an appealed decision, there is no need to wait for the records of the case to be remanded to the court of origin. All that is required is for the appeal to have been duly perfected and finally resolved before execution may be applied for (Bergonia v. Decano, 317 SCRA 660, 665). This is because when the judgment obligee files a motion for execution in the court of origin, all he has to do is to attach the certified true copies of (a) the judgment of the appellate court, and (b) the entry of the said judgment with notice to the adverse party (Sec. 1, Rule 39, Rules of Court) even if the records have not as yet been remanded to the court of origin. This procedure prevents needless delays in the execution of the judgment.

3. If for whatever reason, execution cannot be had with dispatch in the court of origin, the new rules likewise afford


as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court (Buaya v. Stronghold Insurance Co., Inc., 342 SCRA 576, 585). Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust (Mangahas v. Paredes, 515 SCRA 709, 718).

2. The above principles have been consistently applied. Thus, in a subsequent ruling, the Court declared: “Once a judgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court’s ministerial duty, compellable by mandamus” (Greater Metropolitan Manila Solid Waste Management Committee v. Jancom Environmental Corporation, 494 SCRA 280, 296).

3. Judgments and orders become final and executory by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law (Testate Estate of Maria Manuel Vda. De Biascan v. Biascan 347 SCRA 621). Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period (Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 50).

How execution shall issue 1. “Execution shall issue. . . on motion” as clearly set forth

under Sec. 1 of Rule 39. There is therefore, a need to file a motion before the issuance of a writ of execution.

Hence, a judge may not order execution of the judgment in the decision itself (Lou v. Siapno, 335 SCRA 181,187).

2. In Lou v. Siapno, 335 SCRA 181, 187, the Court declared that even in judgments which are immediately executory, “there must be a motion to that effect and a hearing called for the purpose.” Also, “under Supreme Court Circular No. 24-94, a motion for the issuance of a writ of execution must contain a notice to the adverse party” (Pallada v. Regional Trial Court ofKalibo, Aklan, Br. I, 304 SCRA 440, 446).

Chapter X

EXECUTION AND SATISFACTION OF JUDGMENTS

Meaning of execution Execution is the remedy afforded for the satisfaction of a

judgment. Its object being to obtain satisfaction of the judgment on which the writ is issued (Cagayan de Oro Coliseum v. Court of Appeals, 320 SCRA 731, 754). It is the fruit and end of the suit and is the life of the law (Ayo v. Violago-Isnani, 308 SCRA 543, 551).

Part of the judgment to be executed 1. The dispositive portion (also called “fallo”) of the

judgment is that part which is subject to execution under Rule 39 of the Rules of Court.

2. Jurisprudence considers this portion of the judgment as that which finally invests rights upon the parties, sets conditions for the exercise of those rights, and imposes the corresponding duties and obligations. Hence, if there is a conflict between the dispositive portion of the decision and the body thereof, the dispositive portion controls irrespective of what appears in the body (Globe Telecom, Inc. v. Florendo- Flores, 390 SCRA 201, 210).

When execution shall issue 1. Execution is a matter of right upon the expiration of the

period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39, Rules of Court). Once a judgment becomes final and executory, the prevailing party can have it executed

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2. An earlier case explains:

“Under existing rules there are three (3) ways by which a final and executory judgment may be set aside. The first is by petition for relief from judgment under Rule 38 of the Revised Rules of Court, when judgment has been taken against the party through fraud, accident, mistake or excusable negligence, in which case the petition must be filed within sixty (60) days after the petitioner learns of the judgment, but not more than six (6) months after such judgment was entered. The second is by direct action to annul and enjoin the enforcement of the judgment. This remedy presupposes that the challenged judgment is not void upon its face, but is entirely regular in form, and the alleged defect is one which is not apparent upon its face or from the recitals contained in the judgment, xxx the third is either a direct action, as certiorari, or by a collateral attack against the challenged judgment is void upon its face, or that the nullity of the judgment is apparent by virtue of its own recitals xxx” (Macabingkil v. PHHC, 72 SCRA 326, 343).

— oOo —


Certiorari does not interrupt the principal case 1. The petition for certiorari does not interrupt the course of

the principal case (Sec. 7, Rule 65, Rules of Court). Hence, if said petition is filed against a court, the proceedings in that court have to proceed.

2. The respondent court has the duty to proceed with the principal case within ten (10) days from the filing of the petition with a higher court or tribunal. As a rule, failure of the respondent to proceed with the principal case may be a ground for an administrative charge (Sec. 7, Rule 65, Rules of Court).

Remedy in order to interrupt the course of the principal case The petitioner should secure a temporary restraining order or

a writ of preliminary injunction enjoining the public respondent from proceeding with the case and for the preservation of the rights of the parties pending such proceedings. When so secured, the public respondent shall not proceed with the principal case during the period that the temporary restraining order or the writ of preliminary injunction is in effect (Sec. 7, Rule 65, Rules of Court).

D. Collateral Attack of a Judgment

Distinction between a direct from a collateral attack 1. A direct attack of a judgment is made through an action

or proceeding the main object of which is to annul, set aside or enjoin the enforcement of such judgment if not yet carried into effect; or if the property has been disposed of, the aggrieved party may sue for recovery. A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction (Co v. Court of Appeals, 196 SCRA 705, 710).

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(h) where the proceedings conducted were ex parte or in which the petitioner had no opportunity to object; and

(i) where the issue raised is one purely of law or public interest is involved (Sps. Nice v. Equitable PCI- Bank, 516 SCRA 231, 251-252).

For example, if the trial court issues a writ of preliminary injunction despite the absence of proof of a legal right and the injury sustained by the plaintiff, the writ is a nullity (Sps. Nice v. Equitable PCI-Bank, 516 SCRA 231, 253).

Material data (date) rule Section 3 of Rule 46 of the Rules of Court provides that there

are three material dates that must be stated in a petition for certiorari brought under Rule 65: (1) the date when notice of the judgment or final order or resolution was received; (2) the date when a motion for new trial or for reconsideration was filed; and (3) the date when notice of the denial thereof was received. This requirement is for the purpose of determining the timeliness of the petition (Great Southern Maritime Services Corp. v. Acuha, 452 SCRA 422, 432).

Certification against forum shopping Rule 65 also requires the pleader to submit a certification

against forum shopping (Sec. 1, Rule 65 in relation to Sec. 3 of Rule 46; Great Southern Maritime Services Corporation v. Acuha, supra).

Observance of hierarchy of courts In filing for a petition for certiorari, the hierarchy of courts

must be observed. Hence, even though the Supreme Court has concurrent jurisdiction with the Court of Appeals and the Regional Trial Court to issue a writ of mandamus, prohibition or certiorari, litigants are advised against taking direct recourse to the Supreme Court without initially seeking proper relief from the lower courts (See also Carpio v. Sulu Resources Dev. Corp., 387 SCRA 128).


of certiorari (Pilipino Tel. Corp. v. NTC, 410 SCRA 828). Certiorari is not a substitute for a lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive because they do not have identical elements and requisites.

2. The general rule is that before filing a petition for certiorari under Rule 65 of the Rules of Court, the petitioner is mandated to comply with a condition precedent: the filing of a motion for reconsideration of the assailed order, and the subsequent denial of the court a quo. It must be stressed that a petition for certiorari is an extraordinary remedy and should be filed only as a last resort. The filing of a motion for reconsideration is intended to afford the public respondent an opportunity to correct any actual error attributed to it by way of re-examination of the legal and factual issues. However, the rule is subject to the following recognized exceptions:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;

(b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;

(d) where, under the circumstances, a motion for recon-sideration would be useless;

(e) where petitioner was deprived of due process and there is extreme urgency for relief;

(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

(g) where the proceedings in the lower court are a nullity for lack of due process;


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any other purpose (Landbank of the Phils, v. Court of Appeals, 409 SCRA 455, 479). Do not file certiorari if your purpose is to raise a factual issue or to ask for a re-evaluation of the facts and the evidence (PILTEL v. NTC, 410 SCRA 82, 88).

3. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion. The phrase ‘grave abuse of discretion’ has a precise meaning in law, denoting abuse of discretion “too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility. It does not encompass an error of law. Nor does it include a mistake in the appreciation of the contending parties’ respective evidence or the evaluation of their relative weight.

The Court cannot be tasked to go over the proofs presented by the parties and analyze, assess and weigh them all over again to ascertain if the trial court or quasi-judicial agency and the appellate court were correct in according superior credit to this or that piece of evidence of one party or the other. The sole office of a writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack of jurisdiction, and does not include the review of public respondent’s evaluation of the evidence and the factual findings based thereon (Remy’s Freight Service v. Castro, 490 SCRA 160,166).

4. The petition shall be filed not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration was filed, the 60-day period starts not from the notice of judgment but from notice of the denial of the motion for reconsideration (Docena v. Lapser, 355 SCRA 658; Sec. 4, Rule 65, Rules of Court).

Motion for reconsideration 1. A petitioner must first exhaust all other remedies

available before resorting to certiorari. For example, if he can file a motion for reconsideration, then he must do so instead


Procedure on annulment of judgments or final orders and resolutions covers annulment of the judgments of Regional Trial Courts by the Court of Appeals.

The silence of B.P. Big. 129 on the jurisdiction of the Court of Appeals to annul judgments or final orders and resolutions of quasi-judicial bodies like the DARAB indicates its lack of such authority (Springfield Development Corporation v. RTC of Misamis Oriental, 514 SCRA 326, 340). It is, hence, submitted that a party aggrieved who desires an annulment of a judgment or resolution of a quasi-judicial body enumerated under Rule 43 may avail of a petition for review to the Court of Appeals under said rule and not an action to annul the judgment or resolution.

C. Certiorari (Rule 65)

Nature of the remedy 1. “Supervisory or superintending writ,” this remedy is

availed of to annul or modify the proceedings of a tribunal, board or officer exercising judicial or extrajudicial functions which has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. For this petition to prosper, it is necessary to allege and show that there is no more appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law.

As a rule, where appeal is available, certiorari cannot be availed of unless it can be shown that appeal is not speedy, or adequate. Hence, the basic question to be considered is: Does the petitioner have the remedy of appeal or any other remedy? If the answer is in the affirmative, certiorari is not available, as a rule. However, even if appeal is available, if it is not adequate, speedy or equally beneficial as certiorari, a petition for certiorari may be availed of (Landbank of the Phils, v. CA, 409 SCRA 455, 480-481).

2. It is a remedy narrow in scope. It is not a general utility tool in the legal workshop. Its function is to raise only questions of jurisdiction and no other. It cannot be used for


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judgment of annulment is without prejudice to the refiling of the original action in the proper court (Sec. 7, Rule 47, Rules of Court). The prescriptive period for the refiling of the original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. This prescriptive period shall not, however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47, Rules of Court).

2. Where the judgment or final order is set aside and annulled on the ground of extrinsic fraud, the court, upon motion, may order the trial court to try the case as if a motion for new trial was granted (Sec. 7, Rule 47, Rules of Court).

3. Aside from the setting aside of the judgment or fined order and other effects, the judgment of annulment may include the award of damages, attorney’s fees and other relief (Sec. 9, Rule 47, Rules of Court).

Remedy when the questioned judgment has already been executed

If the questioned judgment, final order or resolution had already been executed, the court may issue such orders of restitution or other relief as justice and equity may warrant under the circumstances (Sec. 9, Rule 47, Rules of Court).

Application of Rule 47; annulment of judgments of the MTC 1. Rule 47 governs the annulment by the Court of Appeals

of judgments or final orders and resolutions in civil actions of Regional Trial Courts (Sec. 1, Rule 47, Rules of Court).

2. Sections 2, 3, 4, 7, 8 and 9 of Rule 47 shall likewise apply to annulment of judgments or final orders of a Municipal Trial Court by the Regional Trial Court having jurisdiction of the former. This action shall be treated as an ordinary civil action (Sec. 10, Rule 47, Rules of Court).

Annulment of judgments of quasi-judicial bodies 1. In Macalalag v. Ombudsman, 424 SCRA 741, 744- 745,

the Court ruled that Rule 47 of the 1997 Rules of Civil


judgment was rendered. It is a remedy in law independent of the case where the judgment sought to be annulled is promulgated (Villanueva v. Nite, 496 SCRA 459).

Basic procedure 1. A petition for annulment of judgment filed in the Court of

Appeals shall observe the procedure in ordinary civil cases. Should the Court of Appeals find a trial necessary, the reception of evidence may be referred to a member of the court or to a judge of a Regional Trial Court ("Sec. 6, Rule 47, Rules of Court). A petition filed in the Regional Trial Court shall also be treated as an ordinary civil action (Sec. 10, Rule 47, Rules of Court).

2. Except under Sec. 4 of the 1991 Rules on Summary Procedure where the court is clearly authorized to dismiss a complaint outright even before summons is served, an outright dismissal is not the usual procedure in ordinary civil actions. In ordinary civil actions, the clerk of court first issues the corresponding summons to the defendant upon the filing of the complaint and the payment of the requisite legal fees (Sec. 1, Rule 14, Rules of Court). The defendant may then file a motion to dismiss pursuant to Rule 16 or the court may make a motu proprio dismissal on certain grounds as when it finds from the examination of the complaint that it has no jurisdiction over the subject matter.

An action for annulment of a judgment, although treated as an ordinary civil action, departs from the usual norm because the court, upon the filing of the petition may make an outright dismissal of the petition as long as it has specific reasons for its dismissal. This dismissal may be made even before summons is served. It is only when the court finds a prima facie merit in the petition shall summons be served on the respondent (Sec. 5, Rule 47, Rules of Court).

Effect of a judgment of annulment 1. A judgment of annulment based on lack of jurisdiction

shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the


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Lack of jurisdiction 1. Lack of jurisdiction as a ground for annulment of

judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. Where the court has jurisdiction over the defendant and over the subject matter of the case, its decision will not be voided on the ground of absence of jurisdiction (Republic v. “G” Holdings, 475 SCRA 608, 618). The petitioner must show not a mere grave abuse of discretion but an absolute lack of jurisdiction. The concept of lack of jurisdiction as a ground to annul a judgment does not embrace abuse of discretion (Republic v. “G” Holdings, Inc., 475 SCRA 608, 618). A claim of grave abuse of discretion will support a petition for certiorari under Rule 65 but it will not support an action for annulment of a judgment.

2. In a petition for annulment of judgment, based on lack of jurisdiction, petitioner must show an absolute lack of authority to hear and decide the case. There would be no valid ground to grant the petition for annulment where the error raised pertain to the trial court’s exercise of jurisdiction, not the absence of jurisdiction (Heirs of Maura So v. Obliosca, 542 SCRA 406, 417-418).

Period for filing the action If based on extrinsic fraud, the action must be filed within four

(4) years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppel (Sec. 3, Rule 47, Rules of Court).

Who may file the action The petitioner need not be a party to the judgment sought to

be annulled. What is essential is that the petitioner is one who can prove his allegation that the judgment was obtained by the use of fraud and collusion and that he was affected thereby (Alaban v. Court of Appeals, 470 SCRA 697, 708; Islamic Da’Wah Council of the Philippines v. Court of Appeals, 178 SCRA 178,186). An action for annulment can be filed by one who was not a party to the action in which the assailed


Extrinsic fraud 1. An action to annul a judgment on the ground of fraud lies

only if the fraud is extrinsic or collateral in character. Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court (Alaban v. Court of Appeals, 470 SCRA 697, 708).

This kind of fraud prevents the aggrieved party from having a trial or presenting his case to the court, or is used to procure the judgment without fair submission of the controversy, as when there is a false promise of a compromise or when one is kept ignorant of the suit (Villanueva v. Nite, 496 SCRA 459, 463-464).

2. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief (Sec. 2, Rule 47, Rules of Court).

3. Stated in another way, extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by deception practiced on him by the prevailing party (Alba v. Court of Appeals, 465 SCRA 495, 508).

Forgery or perjury The use of forged instruments or perjured testimonies during

trial is not an extrinsic fraud. Such evidence does not preclude a party’s participation in the trial (Bobis v. Court of Appeals, 348 SCRA 23, 30; Strait Times v. Court of Appeals, 294 SCRA 714, 723). Offering manufactured evidence is intrinsic and not extrinsic fraud. Intrinsic fraud is not sufficient to annul a judgment (Conde v. Intermediate Appellate Court, 144 SCRA 144,153)


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justification, he cannot resort to the action for annulment provided in Rule 47 r for otherwise he would benefit from his own inaction or negligence (Republic v. De Castro, 641 SCRA, 548, 588-590; Citations omitted).

4. An action for the annulment of a judgment is a recourse equitable in character, allowed only in exceptional cases as where there is no available or adequate remedy (Ramos v. Combong, 473 SCRA 499, 504). Jurisprudence reiterates that the remedy may no longer be invoked where the party has availed himself of the remedy of new trial, appeal, petition for relief or other appropriate remedy and lost or where he has failed to avail himself of those remedies through his fault or negligence (Heirs of Maura So v. Obliosca, 542 SCRA 406, 417).

5. The action is commenced by the filing of a verified petition with the proper court. If it is the judgment or final order of a Regional Trial Court which is sought to be annulled, then the action shall be filed in the Court of Appeals (Sec. 1, Rule 47, Rules of Court). If it is that of a Municipal Trial Court, the verified petition shall be filed in the Regional Trial Court having jurisdiction over the former (Sec. 10, Rule 47, Rules of Court).

Grounds for annulment 1. The grounds for annulment of a judgment are: (a)

extrinsic fraud; and (b) lack of jurisdiction (Sec. 2, Rule 47, Rules of Court).

2. A petition for annulment of judgment is an extraordinary action. By virtue of its exceptional character, the action is restricted exclusively to the grounds specified in the rules, namely, (1) extrinsic fraud; and (2) lack of jurisdiction.

The rationale for the restriction is to prevent the extraordinary action from being used by a losing party to make a complete farce of a duly promulgated decision that has long become final and executory (Nudo v. Caguioa, G.R. No. 176906, August 4, 2009; Republic v. TAFPA, Inc., G.R. No. 165333, February 9, 2010).


B. Annulment of Judgments or Final Orders or Resolutions (Rule 47)

Nature of the action 1. An action for annulment of judgment is a remedy in law

independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of the petitioner, and is based on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process (Alaban v. CA, 470 SCRA 697, 707).

2. The remedy may not be invoked where the party has availed himself of the remedy of new trial, appeal, petition for relief or other appropriate remedy and lost, or where he has failed to avail himself of those remedies through his own fault or negligence (Republic of the Philippines v. “G” Holdings, Inc., 475 SCRA 608, 617, 618; Sec. 1, Rule 47, Rules of Court).

3. A more recent case holds:

“A petition for annulment of judgment under Rule 47 is a remedy granted only under exceptional circum-stances where a party, without fault on his part, has failed to avail of the ordinary or other appropriate rem-edies provided by law. Such action is never resorted to as a substitute for a party’s own neglect in not promptly availing of the ordinary or other appropriate remedies.

x x x Let it be stressed at the outset that before a party

can avail of the reliefs provided for by Rule 47, i.e., annul-ment of judgments, final orders, and resolutions, it is a condition sine qua non that one must have failed to move for new trial in, or appeal from, or file a petition for relief against said issuances or take other appropriate remedies thereon, through no fault attributable to him. If he failed to avail of those cited remedies without sufficient

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There is no provision in the Rules of Court making the petition for relief applicable in the CA or this Court. The procedure in the CA from Rules 44 to 55, with the ex-ception of Rule 45 which pertains to the Supreme Court, identifies the remedies available before said Court such as annulment of judgments or final orders or resolutions (Rule 47), motion for reconsideration (Rule 52), and new trial (Rule 53). Nowhere is a petition for relief under Rule 38 mentioned.

If a petition for relief from judgment is not among the remedies available in the CA, with more reason that this remedy cannot be availed of in the Supreme Court. This Court entertains only questions of law. A petition for relief raises questions of facts on fraud, accident, mistake, or excusable negligence, which are beyond the concerns of this Court.”

2. Earlier, Mesina v. Meer, 383 SCRA 625, 634, the Court had ruled that a petition for relief from judgment is not an available remedy in the Court of Appeals.

No petition for relief in summary procedure, small claims In one case, the petitioners argued that petitions for relief from

judgment in forcible entry and unlawful detainer cases can be filed with the RTC provided that petitioners have complied with all the legal requirements to entitle him to avail of such legal remedy. Clearly, ruled the Court, a petition for relief from judgment in forcible entry and unlawful detainer cases, as in the present case, is a prohibited pleading (Sec. 19[d], 1991 Rules on Summary Procedure) The reason for this is to achieve an expeditious and inexpensive determination of the cases subject of summary procedure. A party cannot file the petition for relief with the MTC because it is a prohibited pleading in an unlawful detainer case. A party cannot also file the petition for relief with the RTC because the RTC has no jurisdiction to entertain petitions for relief from judgments of the MTC (Afdal v. Carlos, 636 SCRA 389, 395, December 1, 2010; See Sec. 14(d), Small Claims Rules).


A petition for relief from judgment is not an available remedy in the Supreme Court. In summary, the Supreme Court explains, thus:

“First, although Section 1 of Rule 38 states that when a judgment or final order is entered through fraud, accident, mistake, or excusable negligence, a party in any court may file a petition for relief from judgment, this rule must be interpreted in harmony with Rule 56. which enumerates the original cases cognizable by the Supreme Court, thus:

Section 1. Original cases cognizable. — Only peti-tions for certiorari, prohibition, mandamus, quo warran-to, habeas corpus, disciplinary proceedings against mem-bers of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme Court.

A petition for relief from judgment is not included in the list of Rule 56 cases originally cognizable by this Court.

Second, while Rule 38 uses the phrase “any court,” it refers only to Municipal/Metropolitan and Regional Trial Courts.

As revised, Rule 38 radically departs from the previ-ous rule as it now allows the Metropolitan or Municipal Trial Court which decided the case or issued the order to hear the petition for relief. Under the old rule, a petition for relief from the judgment or final order of Municipal Trial Courts should be filed with the Regional Trial Court,

The procedural change in Rule 38 is in line with Rule 5 prescribing uniform procedure for Municipal and Regional Trial Courts and designation of Municipal/Met-ropolitan Trial Courts as courts of record.

Third, the procedure in the CA and the Supreme Court are governed by separate provisions of the Rules of Court. It may, from time to time, be supplemented by additional rules promulgated by the Supreme Court through resolutions or circulars. As it stands, neither the Rules of Court nor the Revised Internal Rules of the CA allows the remedy of petition for relief in the CA.


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Where the prayer of petitioner is to give due course to his appeal because he was prevented from taking an appeal through fraud, accident, mistake or excusable negligence, and the court finds the allegations of the petition to be true, the court shall set aside the previous denial of the appeal and shall give due course to the said appeal. It shall then elevate the records of the appealed case as if a timely and proper appeal had been made (Sec. 7, Rule 38, Rules of Court).

Preliminary injunction pending the petition for relief Remember that a petition for relief is a remedy available after

the judgment or final order has become final and executory. Hence, the judgment could be the subject of a writ of execution. There is nothing in the Rules that precludes the execution ofthe judgment that is already executory upon proper application of the prevailing party during the pendency of the petition. The petitioner, therefore, would be interested in the preservation of the status quo as well as the preservation of the rights of the parties before the petition is resolved. Hence, the petitioner may avail of the remedy allowed him under Sec. 5 of Rule 38. Under this provision, the court in which the petition is filed may grant such preliminary injunction to preserve the rights of the parties upon the filing of a bond in favor of the adverse party. The bond is conditioned upon the payment to the adverse party of all damages and costs that may be awarded to such adverse party by reason of the issuance of the injunction or the other proceedings following the petition (Sec. 5, Rule 38, Rules of Court).

No petition for relief in the Supreme Court and Court of Appeals 1. Can petitioner avail of a petition for relief from judgment

under Rule 38 of the 1997 Rules of Civil Procedure from resolution of the Supreme Court denying his petition for review?

The Supreme Court in Purcon v. MRM Philippines, Inc., 566 SCRA 645,653-654 answered the question in the negative.


of the Supreme Court to effect a liberal interpretation when dictated by the circumstances.

Form of the petition; affidavit of merit The petition must be verified and must be accompanied with

affidavits showing fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be (Sec. 3, Rule 38, Rules of Court).

Order to answer If the petition is sufficient in form and substance, to justify

relief, the court in which it is filed shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof (Sec. 4, Rule 38, Rules of Court).

Hearing of the petition After the filing of the answer or the expiration of the period to

file the answer, the court shall hear the petition (Sec. 6, Rule 38, Rules of Court).

Action of the court After the hearing and the court finds that the allegations

therein are not true, it shall dismiss the petition. If the court finds the allegations to be true, it shall set aside the judgment, final order or other proceeding complained of. The case then shall stand as if such judgment, final order or proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it (Sec. 6, Rule 38, Rules of Court). This action of the court applies to a petition for relief praying that the judgment, final order or proceeding be set aside having been entered or taken against petitioner by fraud, accident, mistake or excusable negligence (Sec. 1, Rule 38, Rules of Court).


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of judgment or final order such as an order of execution. Rule 38 does not only refer to judgments but also to orders, or any other proceedings (Cayetano v. Ceguerra, 13 SCRA 73, 79).

When to file The petition shall be filed within sixty (60) days after the

petitioner learns of the judgment, final order or proceeding and not more them six (6) months after such judgment or final order was entered, or such proceeding was taken (Sec. 3, Rule 38, Rules of Court).

Section 3 of Rule 38 reads:

“SEC. 3. Time for filing petition; contents and verifi-cation. — A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits, showing the fraud, accident, mistake or excusable negligence relied upon and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.”

Thus, it is clear that a petition for relief from judgment must be filed within: (a) 60 days from knowledge of judgment, order or other proceedings to be set aside; and (b) six (6) months from entry of such judgment, order or other proceeding. These two periods must concur. Both periods are also not extendible and never interrupted. Strict compliance with these periods stems from the equitable character and nature of the petition for relief. Indeed, relief is allowed only in exceptional cases as when there is no other available or adequate remedy. As it were, a petition for relief is actually the “last chance” given by law to litigants to question a final judgment or order. And failure to avail of such “last chance” within the grace period fixed by the Rules is fatal (Quelnan v. VHF Philippines, 470 SCRA 73, 80). While ‘strict interpretation’ is the norm in applying the periods mentioned, such rule is always subject to the power


the case was decided by it (Secs. 1-2, Rule 38, Rules of Court; Redena v. Court of Appeals, G.R. No. 146611, February 6, 2007; Afdal v. Carlos, 636 SCRA 389, 395, December 1, 2010).

Extrinsic fraud; concept (Bar 2011) 1. The fraud that is a ground for the filing of a petition for

relief is “extrinsic” fraud. One case refers to extrinsic fraud as “that fraud which the prevailing party caused to prevent the losing party from being heard on his action or defense. Such fraud concerns not the judgment itself but the manner in which it was obtained. For example, the petition of a defending party would be justified where the plaintiff deliberately caused with the process server’s connivance the service of summons on defendant at the wrong address and thus succeeded in getting a judgment by default against him” (AFP Mutual Benefit Association, Inc. v. Regional Trial Court, Marikina City, Branch 193, 642 SCRA 720, 727, February 14, 2011).

2. Extrinsic fraud also justifies a motion for new trial or a motion to set aside an order of default.

Petition is available only to the parties A petition for relief from judgment together with a motion for

new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment (Alaban v. CA, 470 SCRA 697, 705).

Petition is available to proceedings after the judgment A petition for relief is available not only against a judgment or

final order. Under Sec. 1 of Rule 38, it is also available when “any other proceeding is thereafter taken against the petitioner in any court through fraud, accident, mistake, or excusable negligence.” Thus, it was held that a petition for relief is also applicable to a proceeding taken after the entry


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(Trust International Paper Corporation v. Pelaez, 499 SCRA 552, 561).

Also, a party who has filed a motion for new trial but which was denied cannot file a petition for relief. These two remedies are said to be exclusive of each other. It is when a party aggrieved by a judgment has not been able to file a motion for new trial that a petition for relief can be filed (Francisco v. Puno, 108 SCRA 427, 432).

Grounds for a petition for relief; proper court 1. A petition for relief may be filed on the following grounds: (a) When a judgment or final order is entered, or any other

proceeding is thereafter taken against the petitioner in any court through fraud, accident, mistake, or excusable negligence (Secs. 1 and 38, Rules of Court); or

(b) When the petitioner has been prevented from taking an appeal by fraud, accident, mistake, or excusable negligence (Sec. 2, Rule 38, Rules of Court).

2. In letter “a,” the petition shall be filed in such court and in the same case (not in another or higher court). The petition shall pray that the judgment, order or proceeding be set aside (Sec. 1, Rule 38, Rules of Court).

In letter “b,” the petition shall likewise be filed in such court and in the same case (not in another or higher court) but the prayer this time is that the appeal be given due course (Sec. 2, Rule 38, Rules of Court).

3. Under the present Rules, petitions for relief from a judgment, final order or other proceeding rendered or taken should be filed in and resolved by the court in the same case from which the petition arose. Thus, petition for relief from a judgment, final order or proceeding involved in a case tried by a municipal trial court shall be filed in and decided by the same court in the same case, or in the Regional Trial Court if


Appeals from judgments of the Office of the President The judgments, resolutions, or final orders of the Office of the

President may be taken to the Court of Appeals under Rule 43 (Secs. 1 and 3, Rule 43, Rules of Court).

II - REMEDIES AFTER A JUDGMENT HAS BECOME FINAL AND EXECUTORY

1. The 1997 Rules of Civil Procedure provides the following remedies for aggrieved parties against a judgment that is already final and executory, namely: (Bar 1995)

(a) Petition for relief from judgment under Rule 38; and (b) Petition for annulment of a judgment under Rule 47. 2. In addition to the above, jurisprudence has likewise

recognized an additional relief through (a) a direct action of certiorari, and (b) a collateral attack of a judgment that is void on its face (Escareal v. Philippine Airlines, Inc., 455 SCRA 119, 133).

A. Petition for Relief from Judgments Orders or other Proceedings (Rule 38) Nature of the petition

1. It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable neglect (Quelnan v. VHF Philippines, 470 SCRA 73, 80).

2. A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition

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Supreme Court on certiorari under Rule 65 (Sec. 2, Rule 64, Rules of Court) by filing the petition within thirty (30) days from notice (Sec. 3, Rule 64, Rules of Court).

2. The review by the Supreme Court is limited only to the jurisdictional issue of whether the Commission on Elections acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. Findings of fact of the commission, supported by substantial evidence, shall be final and non-reviewable. The Supreme Court does not ordinarily review in a certiorari case the commission’s appreciation and evaluation of evidence. Any misstep in this regard generally involves an error of judgment, not of jurisdiction. In exceptional cases, however, when the action of the Comelec on the appreciation and evaluation of evidence oversteps the limits of its discretion to the point of being grossly unreasonable, the Court is not only obliged but has the constitutional duty to intervene. “When grave abuse of discretion is present, resulting errors arising from the grave abuse mutate from error of judgment to one of jurisdiction” (Mitra v. Commission on Elections, G.R. No. 191938, July 2, 2010).

Review of judgments of the Commission on Audit (Bar 2011) A judgment, resolution or final order of the Commission on

Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 (Sec. 2, Rule 64, Rules of Court) by filing the petition within thirty (30) days from notice (Sec. 3, Rule 64, Rules of Court).

Appeals from judgments of the Civil Service Commission A judgment, final order or resolution of the Civil Service

Commission may be taken to the Court of Appeals under Rule 43 of the Rules of Court (Secs. 1 and 3, Rule 43, Rules of Court). The appeal shall be taken within fifteen (15) days from notice (Sec. 4, Rule 43, Rules of Court). Note the difference between the mode of review from a judgment of the Civil Service Commission and the mode of review from the judgments of other constitutional commissions.


specifically by the Rules of Procedure of the Office of the Ombudsman.

The CA’s issuance of a preliminary mandatory injunction, staying the penalty of dismissal imposed by the Ombudsman in an administrative case, is thus an encroachment on the rule-making powers of the Ombudsman under Sec. 13(8), Article XI of the Constitution, and Secs. 18 and 27 of R.A. No. 6770, which grants the Office of the Ombudsman the authority to promulgate its own rules of procedure. The issuance of an injunctive writ renders nugatory the provisions of Sec. 7, Rule III of the Rules of Procedure of the Office of the Ombudsman x x x” (Facura v. Court of Appeals, G.R. No. 166495, February 16, 2011; De Jesus v. Office of the Ombudsman, G.R. No. 184129, February 16, 2011; Office of the Ombudsman v. Parungao, G.R. No. 184263, February 16, 2011).

Appeals from judgments of the Court of Tax Appeals (Bar 2006) 1. Under Sec. 11 of Republic Act No. 9282, March 30, 2004,

no civil proceeding involving matters arising under the National Internal Revenue Code, the Tariff and Customs Code or the Local Government Code shall be maintained, except as provided, until and unless an appeal has been previously filed with the Court of Tax Appeals and disposed of in accordance with the provisions of the Act.

A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial may file a petition for review with the CTA en banc. (Bar 2009)

2. Sec. 11 of the same Act further provides that a party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45 of the 1997 Rules of Civil Procedure.

Review of judgments of the Commission on Elections (Bar 2011) 1. A judgment, resolution or final order of the Commission

on Elections may be brought by the aggrieved party to the


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4. A reminder was recently made in a recent case that the remedy from the Ombudsman’s orders or resolutions in criminal cases is to file a petition for certiorari under Rule 65 with the Supreme Court (Quarto v. Ombudsman Marcelo, G.R. No. 169042, October 5, 2011).

Appealable decisions of the Ombudsman are not stayed by injunction

The decision of the Ombudsman is immediately executory and may not be stayed by the filing of an appeal or the issuance of an injunctive writ.

“ x x x Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order (A.O.) No. 17, is categorical in providing that an appeal shall not stop an Ombudsman decision from being executory. This rule applies to the appealable decisions of the Ombudsman, namely, those where the penalty imposed is other than public censure or reprimand, or a penalty of suspension of more than one month, or a fine equivalent to more than one month’s salary x x x.”

The aforementioned Sec. 7 is also clear in providing that in case the penalty is removal and the respondent wins his appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the removal. As explained above, there is no such thing as a vested interest in an office, or an absolute right to hold office, except constitutional offices with special provisions on salary and tenure. The Rules of Procedure of the Ombudsman being procedural, no vested right xxx would be violated as they would be considered under preventive suspension, and entitled to the salary and emoluments they did not receive in the event that they would win their appeal.

The ratiocination above also clarifies the application of Rule 43 of the Rules of Court in relation to Sec. 7 of the Rules of Procedure of the Office of the Ombudsman. The CA, even on terms it may deem just, has no discretion to stay a decision of the Ombudsman, as such procedural matter is governed


resolutions of the Ombudsman in preliminary investigations of criminal cases are reviewed by this Court. The remedy from the adverse resolution of the Ombudsman is a petition for certiorari under Rule 65. not a petition for review on certiorari under Rule 45.” (Citing Cabrera v. Lapid. 510 SCRA 55: Underscoring supplied).

In any event, jurisprudence now holds that where the findings of the Ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the Supreme Court under Rule 65 (Enemecio v. Office of the Ombudsman, supra).

3. Villanueva v. Ople, 475 SCRA 539, likewise clearly held: “The proper remedies in questioning decisions and resolutions of the Office of the Ombudsman (OMB) have already been settled in a catena of cases.

“Fabian v. Desierto, supra, held that appeals from the orders, directives, or decisions of the OMB in administrative disciplinary cases were cognizable by the Court of Appeals. Tirol v. Del Rosario, 391 Phil. 897, clarified that in non-administrative cases in which the OMB had acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a petition for certiorari under Rule 65 may be filed directly with this Court. Accordingly, Kuizon v. Desierto, 354 SCRA 158, held that this Court had jurisdiction over petitions for certiorari questioning the resolutions or orders of the Ombudsman in criminal cases.

Thus, petitioners committed a procedural error in resorting to a Petition for Review under Rule 45 of the Rules of Court. To challenge the dismissal of their Complaint and to require the OMB to file an information, petitioners should have resorted to a petition for certiorari under Rule 65 of the Rules of Court. The only ground upon which this Court mav entertain a review of the OMB’s resolution is grave abuse of discretion not reversible errors.” (Underscoring supplied).


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X X X

“In Fabian, we ruled that appeals from the decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals by way of a petition for review under Rule 43 of the 1997 Rules of Civil Procedure, as amended. This ruling has been repeatedly reiterated in subsequent cases and continues to be the controlling doctrine.

Here, petitioner’s complaint is criminal in nature. In Estrada v. Desierto, we held that the remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding probable cause in criminal cases or non-administrative casesP when tainted with grave abuse of discretion, is to file an original action for certiorari with this Court, not with the Court of Appeals. In cases when the aggrieved party is questioning the Office of the Ombudsman’s finding of lack of probable cause, as in this case, there is likewise the remedy of certiorari under Rule 65 to be filed with this Court and not with the Court of Appeals. This rule was subsequently restated in Acuna v. Deputy Ombudsman for Luzon where we held that the remedy of an aggrieved party in criminal complaints before the Ombudsman is to file with this Court a petition for certiorari under Rule 65.”

2. In criminal cases, the ruling of the Ombudsman shall be elevated to the Supreme Court by way of Rule 65. The Supreme Court’s power of review over resolutions and orders of the Office of the Ombudsman is restricted only to determining whether grave abuse of discretion has been committed by it. The Court is not authorized to correct every error or mistake of the Office of the Ombudsman other than grave abuse of discretion (Villanueva v. Ople, G.R. No. 165125, November 18, 2005) . The remedy is not a petition for review on certiorari under Rule 45 (Cabrera v. Lapid, G.R. No. 129098, December 6, 2006) but a petition for certiorari under Rule 65 (Salvador v. Mapa, G.R. No. 135080, November 28, 2007).

Salvador v. Mapa emphatically declared: “ x x x We have ruled time and again, that a petition for

review on certiorari is not the proper mode by which


Review of the rulings of the Ombudsman (Bar 2006) 1. In administrative disciplinary cases, the rulings of the

Office of the Ombudsman are appealable to the Court of Appeals. The provision of Sec. 27 of R.A. No. 6770 (The Ombudsman Act of1987) insofar as it allowed a direct appeal to the Supreme Court was declared invalid in Fabian v. Desierto because the statute, being one, which increased the appellate jurisdiction of the Supreme Court, was enacted without the advice and concurrence of the Court. Sec. 30 of Art. VI of the Constitution of the Philippines provides that “No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence” (Fabian v. Desierto, 295 SCRA 470). Instead, appeals from decisions of the Ombudsman in administrative disciplinary actions should be brought to the Court of Appeals under Rule 43 (Enemecio v. Office of the Ombudsman, 419 SCRA 82; Gonzales v. Rosas, 423 SCRA 288; Bar 2006).

(a) The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases (Golangco v. Fung, Office of the Ombudsman, G.R. Nos. 147640-147762, October 12, 2006).

(b) Although as a consequence of Fabian appeals from the Ombudsman in administrative cases are now cognizable by the Court of Appeals, nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with the Supreme Court to set aside the Ombudsman’s order or resolution (Nava v. National Bureau of Investigation, 455 SCRA 377, 389).

In Belongilot v. Cua, 636 SCRA 34, 41, 42, November 24, 2010, the mode of review from the decision of the Ombudsman was reiterated, thus:


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Labor Relations Commission filed with the Supreme Court after June 1, 1999 shall no longer be referred to the Court of Appeals, but shall forthwith be DISMISSED (A.M. No. 99-2- 01- SC, February 9, 1999).

3. The power of the Court of Appeals to review NLRC decisions via Rule 65 or Petition for Certiorari has been settled as early as the decision in St. Martin Funeral Home v. National Labor Relations Commission. The Court held that the proper vehicle for such review was a special civil action for certiorari under Rule 65 of the Rules of Court, and that this action should be filed in the Court of Appeals in strict observance of the doctrine of the hierarchy of courts. The Court of Appeals — pursuant to the exercise of its original jurisdiction over Petitions for Certiorari — is specifically given the power to pass upon the evidence, if and when necessary, to resolve factual issues (Prince transport, Inc. v. Garcia, 639 SCRA 312, 323-324, January 12, 2011; Culili v. Eastern Telecommunications Philippines, Inc., 642 SCRA, 338, 352- 353, February 9, 2011).

Appeals from the Sandiganbayan 1. Decisions and final orders of the Sandiganbayan shall be

appealable to the Supreme Court by way of certiorari under Rule 45 raising pure questions of law. Certiorari under Rule 65 is not the remedy (Sec. 1, Rule 45, Rules of Court; People v. Espinosa, G.R. Nos. 153714-20, August 15, 2003).

2. Sec. 7 of PD 1606 as amended by R.A. 7975 and R.A. 8249 provides:

“Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. Whenever, in any case decided by the Sandiganbayan, the penalty of reclusion perpetua, life imprisonment or death is imposed, the decision shall be appealable to the Supreme Court in the manner prescribed in the Rules of Court.”


If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice (Sec. 8, Rule 45, Rules of Court).

E. Other Appeals Appeals from Quasi-judicial Bodies (Rule 43)

1. Appeals from judgments and final orders of quasijudicial bodies/agencies enumerated in Rule 43 are now required to be brought to the Court of Appeals under the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide a uniform rule of appellate procedure from quasi-judicial bodies (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128,138-139).

2. The appeal under Rule 43 may be taken to the Court of Appeals whether the appeal involves a question of fact, a question of law, or mixed questions of fact and law (Sec. 3, Rule 43). The appeal shall be taken by filing a verified petition for review with the Court of Appeals (Sec. 5, Rule 43, Rules of Court), within 15 days from notice (Sec. 4, Rule 43).

3. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just (Sec. 12, Rule 43, Rules of Court).

Review of decisions of the NLRC (Bar 2006) 1. The remedy of a party aggrieved by the decision of the

National Labor Relations Commission is to promptly move for the reconsideration of the decision, and if denied, to timely file a special civil action of certiorari under Rule 65 within sixty (60) days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the Court of Appeals (St. Martin Funeral Home v. NLRC, G.R. No. 130866, September 16,1998).

2. Because of St. Martin, all special civil actions arising out of any decision or final resolution or order of the National


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How to appeal 1. The petitioner shall file a verified petition with the

Supreme Court within the reglementary period raising therein only questions of law (Sec. 1, Rule 45, Rules of Court).

2. The petitioner shall pay to the clerk of court of the Supreme Court the docket and other lawful fees as well as the deposit in the amount of P500.00 for costs. Proof of service of a copy of the petition on the lower court concerned and the adverse party shall be submitted together with the petition (Sec. 3, Rule 45, Rules of Court).

The petition shall contain all the matters mentioned in Sec. 4 of Rule 45 including compliance with the material data rule which requires the petitioner to indicate the material dates showing when notice of the judgment, final order or resolution subject of the petition was received and when a motion for new trial or motion for reconsideration, if any, was filed and when notice of the denial was received. Among others, the petition must also be accompanied by a certification against forum shopping as provided for in Sec. 2 of Rule 42 (Sec. 4, Rule 45, Rules of Court)

The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for its dismissal (Sec. 5, Rule 45, Rules of Court).

3. The Supreme Court, may on its own initiative, deny the petition on the ground that (a) the appeal is without merit, (b) is prosecuted manifestly for delay, or (c) that the questions raised therein are too unsubstantial to require consideration (Sec. 5, Rule 45, Rules of Court).

For purposes of determining whether the petition should be denied or given due course, the Supreme Court may require the filing of such pleadings, briefs, memoranda or the submission of documents it may deem necessary (Sec. 7, Rule 45, Rules of Court).


as a mode of appeal is filed with the Supreme Court (Sec. 1, Rule 45, Rules of Court).

As a rule, a party cannot file a petition both under Rules 45 and 65 of the Rules of Court because said procedural rules pertain to different remedies and have distinct applications. The remedy of appeal under Rule 45 and an original action for certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. Thus, a party should not join both petitions in one pleading. When a party adopts an improper remedy, his petition may be dismissed outright (Nagkakaisang Mamumuo sa PICOP Resources, Inc. v. Court of Appeals, G.R. Nos. 148839-40, November 2, 2006).

However, the Court may set aside technicality for justifiable reasons as when the petition before the court is clearly meritorious and filed on time both under Rules 45 and 65. In accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice, the Court may treat the petition as having been filed under Rule 45 (International Corporate Bank, Inc. v. Court of Appeals, G.R. No. 129910, September 5, 2006).

When to appeal 1. The appeal which shall be in the form of a verified

petition shall be filed within fifteen (15) days from notice of the judgment, final order or resolution appealed from, or within fifteen (15) days from notice of the denial of the petitioner’s motion for new trial or motion for reconsideration filed in due time (Sec. 2, Rule 45, Rules of Court).

2. The Supreme Court may, for justifiable reasons, grant an extension of thirty (30) days only within which to file the petition provided (a) there is a motion for extension of time duly filed and served; (b) there is full payment of the docket and other lawful fees and the deposit for costs; and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2, Rule 45, Rules of Court).


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(e) Certiorari under Rule 45 does not require a prior motion for reconsideration while certiorari under Rule 65 requires as a general rule, a prior motion for reconsideration (Progressive Development Corporation v. Court of Appeals, 301 SCRA 637, 647; The Bases Conversion and Development Authority v. Uy, G.R. No. 144062, November 2, 2006).

(f) Certiorari under Rule 45 stays the judgment appealed from while certiorari under Rule 65 does not stay the judgment or order subject of the petition unless enjoined or restrained (Sec. 7, Rule 65, Rules of Court).

(g) In certiorari under Rule 45, the parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Sec. 4[a], Rule 45, Rules of Court; Cebu Women’s Club v. De la Victoria, G.R. No. 120060, March 9, 2000; Marquez v. Court of Appeals, G.R. No. 116689, April 3, 2000), while in certiorari under Rule 65, the tribunal, board, officer exercising judicial or quasijudicial functions is impleaded as respondent (Sec. 5, Rule 65, Rules of Court). In an appeal by certiorari under Rule 45, the petitioner and respondent are also the original parties to the action in the lower court. In certiorari as an original action, the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents (Yasuda v. Court of Appeals, 330 SCRA 385).

(h) Certiorari as a special civil action is filed with the Regional Trial Court (Sec. 21, BP 129 as amended), the Court of Appeals (Sec. 9, BP 129 as amended) or with the Supreme Court (Sec. 5[1], Art. VIII, Constitution of the Philippines) whereas certiorari


but an independent action (Fortune Guarantee and Insurance Corp. v. Court of Appeals, 379 SCRA 7). It must be noted that while both Rules 45 and 65 are petitions for certiorari, the former is a petition for review while the latter is an original special civil action for certiorari (The Bases Conversion and Development Authority v. Uy, 506 SCRA 524, 534).

(b) Because it is a mode of appeal, certiorari under Rule 45 seeks to review final judgments or final orders while certiorari under Rule 65 may be directed against an interlocutory order or matters where no appeal may be taken from (Sec. 1, Rule 41, Rules of Court).

(c) Certiorari under Rule 45 raises questions of law (DMA Shipping Philippines, Inc. v. Cabilar, 452 SCRA 551, 558) while certiorari under Rule 65 raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction (Sec. 1, Rule 65, Rules of Court; See KEPCO Philippines Corporation v. Commissioner of Internal Revenue, 636 SCRA 166, 174, November 24, 2010).

(d) An appeal by certiorari under Rule 45 shall be filed within fifteen (15) days from notice of judgment or final order or resolution appealed from (Sec. 2, Rule 45, Rules of Court), while a petition for certiorari under Rule 65 shall be filed not later than sixty (60) days from notice of judgment, order or resolution sought to be assailed and in case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of denial of said motion (Sec. 4, Rule 65, Rules of Court; Systems Factors Corporation v. NLRC, 346 SCRA 149, 152; Ong v. Bognalbal, G.R. No. 149140, September 12, 2006).


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Appeal from a judgment in a petition for a writ of amparo or writ of habeas data; writ of kaiikasan

1. Any party in a petition for a writ of amparo may appeal from the final order or judgment of the court to the Supreme Court under Rule 45. Although Rule 45 mandates raising only questions of law (Sec. 1, Rule 45, Rules of Court), an appeal from a judgment in a petition for a writ of amparo, by way of exception to the general rule under Rule 45, may raise not only questions of law but also questions of fact or both questions of law and fact (Sec. 19, The Rule on the Writ of Amparo, effective October 24, 2007).

2. Also, an appeal from a judgment in a petition for writ of habeas data may be appealed to the Supreme Court under Rule 45. Said appeal may likewise reuse questions of fact or law or both (Sec. 19, Rule on the Writ of Habeas Data, Effective February 2, 2008; Bar 2009).

3. An appeal to the Supreme Court under Rule 45 in a writ of kaiikasan may raise questions of fact (Sec. 16, Rule 7, Writ of Kaiikasan, Part III, Rules of Procedure for Environmental Cases).

Certiorari under Rule 45 is not the certiorari under Rule 65 (Bar 1998; 1999)

The following are the principal distinctions between a petition for review on certiorari under Rule 45 and a petition for certiorari under Rule 65:

(a) Certiorari under Rule 45 is a mode of appeal (Sec. 2[c], Rule 41, Rules of Court), while certiorari under Rule 65 is a special civil action that is an original action and not a mode of appeal (Rule 65, Rules of Court; See KEPCO Philippines Corporation v. Commissioner of Internal Revenue, 636 SCRA 166, 174, November 24, 2010).

Certiorari under Rule 45 is but a continuation of the appellate process over the original case. Certiorari under Rule 65 is not a part of the appellate process


(g) The findings of fact of the Court of Appeals are contrary to those of the trial court;

(h) The findings of fact are conclusions without citation of specific evidence on which they are based;

(i) The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents; or

(j) The findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record (Delta Sales v. Pre-Stress International, G.R. No. 176768, January 12, 2009; Jarantilla v. Jarantilla, 636 SCRA, 299, 309-310, December 1, 2010; Hyatt Elevators and Escalators v. Cathedral Heights Building Complex Association, 636 SCRA 401,405-406, December 1,2010; See also, Fernando v. Fernando, 641 SCRA 202,208, January 31, 2011; Heirs ofFerraren v. Court of Appeals, G.R. No. 159328, October 5, 2011).

3. It is fundamental that a petition for review on certiorari filed with the Supreme Court under Rule 45 of the Rules of Court shall, as a general rule, raise only questions of law and that the Court is not duty-bound to analyze again and weigh the evidence introduced in and considered by the tribunals below. One recognized, exception to the rule is when the findings of facts of the courts below are conflicting as when the findings of the Court of Appeals are contrary to those by the trial court. Thus, in one case, the RTC affirmed the findings of the MTC that the subject house which stands on the disputed parcel of land was built at the time that the ownership of the said lot was in the name of petitioners’ parents. The CA, on the other hand, ruled that the abovementioned house was constructed when petitioners’ parents were in possession of the lot in question as lessees. The Court’s review of such findings is warranted under the circumstances (Heirs of Ferraren v. Court of Appeals, G.R. No. 159328, October 5, 2011).


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their oaths. Nevertheless, the higher court is not entirely precluded from reviewing and reversing these findings if it is not convinced that they conform to the evidence on record and to its own impressions of the credibility of the witnesses (Spouses Surtida v. Rural Bank of Malinao [AlbayJ, Inc., G.R. No. 170563, December 20, 2006; See for further readings Taguinod v. People, G.R. No. 185833, October 12, 2011).

When questions of fact may be passed upon in a Rule 45 petition 1. Remember the general rule that the Supreme Court

cannot pass upon in a petition for review on certiorari (Rule 45) factual findings of a lower court, since its jurisdiction is limited to reviewing errors of law (Natividad v. MTRCB, 540 SCRA 124, 135). Hence, factual findings of the trial court, affirmed by the Court of Appeals are final and conclusive and may not be reviewed on appeal.

The issue of negligence for instance, is factual in nature. Whether a person is negligent or not is a question of fact which, as a general rule, cannot be passed upon by the Supreme Court.

2. The rule proscribing the raising of questions of fact is not an absolute one. Questions of fact may be raised in an appeal under Rule 45 provided the petition shows any, some or all of the following:

(a) The conclusion of the Court of Appeals is grounded entirely on speculations, surmises and conjectures;

(b) The inference made is manifestly mistaken, absurd or impossible;

(c) There is a grave abuse of discretion; (d) The judgment is based on misapprehension of facts; (e) The findings of facts are conflicting; (f) The Court of Appeals, in making its findings went beyond

the issues of the case and the same is contrary to the admissions of both appellant and appellee;


during the trial of the case (Tayco v. Heirs of Tayco-Flores, 637 SCRA, 742, 752-753, December 13, 2010).

2. The rule is that the jurisdiction of the Court over appealed cases from the Court of Appeals is limited to the review and revision of errors of law allegedly committed by the appellate court, as its findings of fact Eire deemed conclusive. Thus, this Court is not duty-bound to analyze and weigh all over again the evidence already considered in the proceedings below. However, this rule admits exceptions, such as when the findings of fact of the Court of Appeals are contrary to the findings and conclusions of the trial court (Meneses v. Venturozo, G.R. No. 172196, October 19, 2011).

For instance, the Court is generally precluded from resolving a Rule 45 petition that solely raises the issue of damages, an essentially factual question because Sec. 1 of Rule 45 expressly states that the petition shall raise only questions of law (Tan v. OMC Carriers, Inc., 639 SCRA 471, 480, January 12, 2011).

3. Also, if a party seeks a determination whether certain concessionaires are public utilities or mere agents of the MWSS, there is a need for an examination of the intention of the MWSS and the concessionaires at the time of the bidding process, negotiation, and execution of the Concession Agreements. Certainly, this matter is a factual issue requiring presentation and evaluation of evidence such as bidding documents, memoranda, and the testimonies of the participants of the bidding and contract negotiations. Significantly, the petition raises issues of fact which cannot be addressed to the Supreme Court (Freedom from Debt Coalition v. MWSS, 539 SCRA 621, 635).

4. Indeed, the general rule is that findings of facts of the trial court will not ordinarily be disturbed by an appellate court absent any clear showing that the trial court has overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could very well affect the outcome of the case. It is the trial court that had the opportunity to observe the witnesses’ manner of testifying, their furtive glances, calmness, sighs or their scant or full realization of


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3. A request in a Rule 45 petition for the Court to re-examine the testimony of a witness in the transcript of stenographic notes concerning his alleged testimonial proof of damages cannot be accommodated and the substantive issue of whether or not one is entitled to moral and exemplary damages as well as attorney’s fees is a factual issue which is beyond the province of a petition for review on certiorari (Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011).

4. The question of whether the ownership of a certain person has been sustained with finality is factual in nature since it requires the presentation of the evidence (Republic v. Malabanan, G.R. No. 169067, October 6, 2010).

5. The question of whether a person acted with good faith or bad faith in purchasing and registering real property is a question of fact (Heirs of Cabigas v. Limbaco, G.R. No. 175291, July 27, 2011).

6. An assertion that no tenancy relationship existed between the parties is a question of fact beyond the province of the Court in a petition for review under Rule 45 of the Rules of Court in which only questions of law may be raised. Absent any of the obtaining exceptions to this rule, the findings of facts especially by the Court of Appeals, are binding on the Supreme Court (Reyes v. Mauricio, 636SCRA 79,85, November 24, 2010).

7. The determination of whether or not there exists a perfected contract of sale is essentially a question of fact (Hyatt Escalators Corporation v. Cathedral Heights Building Complex Association, Inc., 636 SCRA 401, 405, December 1, 2010).

Findings of facts; not ordinarily reviewed 1. In the exercise of its power of review, the Supreme Court

is not a trier of facts, and unless there are excepting circumstances, it does not routinely undertake the re-examination of the evidence presented by the contending parties


Questions of law; questions of fact 1. Primarily, Sec. 1, Rule 45 of the Rules of Court cat-

egorically states that the petition filed shall raise only questions of law, which must be distinctly set forth (Co v. Vargas, G.R. No. 195167, November 16, 2011; See also F.A.T. Key Computer Systems v. Online Networks International, Inc., 641 SCRA 390, 408, February 2, 2011).

It is fundamental that a petition for review on certiorari filed with this Court under Rule 45 of the Rules of Court shall, as a general rule, raise only questions of law and that the Court is not duty-bound to analyze again and weigh the evidence introduced in and considered by the tribunals below (Heirs ofFeraren v. Court of Appeals, G.R. No. 159328, October 5, 2011).

2. A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact (Republic v. Malabanan, G.R. No. 169067, October 6, 2010; See also F.A.T. Key Computer Systems v. Online Networks International, Inc., 641 SCRA 390, 408, February 2, 2011; Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011; Heirs of Cabigas v. Limbaco, G.R. No. 175291, July 27, 2011; Republic v. Spouses Guilalas, G.R. No. 159564, November 16, 2011).

Thus, the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact (Jarantilla v. Jarantilla, 636 SCRA 299, 308, December 1, 2010).


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2. The mode of appeal prescribed under Rule 45 shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment (Sec. 9, Rule 45, Rules of Court).

Provisional remedies Under the latest amendments to Rule 45, the petition for

review on certiorari under Rule 45 may include an application for a writ of preliminary injunction or other provisional remedies. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency (Sec. 1, Rule 45 as amended by A. M. No. 07-7-12 SC effective December 27, 2007).

Not a matter of right 1. An appeal or a review under Rule 45 is not a matter of

right, but of sound judicial discretion, and will be granted only when special and important reasons could justify the petition.

2. The following are examples of reasons which the court may consider in allowing the petition:

(a) when the court below has decided a question of substance not yet determined by the Supreme Court;

(b) when the court below decided a question of substance in a way that is probably not in accord with law or with the applicable decisions of the Supreme Court;

(c) when the court below has departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for the exercise of the power of supervision of the Supreme Court (Sec. 6, Rule 45, Rules of Court).

3. Every appeal to the Supreme Court is not a matter of right but of sound judicial discretion with the exception of cases where the penalty of death or reclusion perpetua where an appeal is a matter of right leaving the reviewing court without any discretion (People v. Flores, 481 SCRA 451, 453).


“ x x x Clearly, petitioner raises only questions of law which require the interpretation and application of the rules of procedure laid down by the Rules of Court. However, considering that the assailed decision was rendered by the RTC in the exercise of its appellate jurisdiction as it was brought before it from the MTCC, petitioner should have elevated the case to the CA under Rule 42 via the second mode of appeal, instead of appealing directly before this Court under Rule 45.”

(b) Appeal from the judgment, final order, or reso-lutions of the Court of Appeals where the petition shall raise only questions of law distinctly set forth (Sec. 1, Rule 45, Rules of Court). The filing of a petition for certiorari under Rule 65 from the judgment of the Court of Appeals is availing of an improper remedy. The petition would merit an outright dismissal (Romullo v. Samah- ang Magkakapitbahay ng Bayanihan Compound Homeowner’s Association, G.R. No. 180687, October 6, 2010).

(c) Appeal from the judgment, final order, or reso-lutions of the Sandiganbayan where the petition shall raise only questions of law distinctly set forth (Sec. 1, Rule 45, Rules of Court)-,

(d) Appeal from the decision or ruling of the Court of Tax Appeals en banc (Sec. 11, R.A. 9282; Sec. 1, Rule 45 as amended by A.M. No. 07-7-12-SC).

(e) Appeals from a judgment or final order in a petition for a writ of amparo to the Supreme Court. While in other cases of appeal under Rule 45, only questions of law may be raised, here the question raised need not only be questions of law but also questions of fact or of both law and fact (A.M. No. 07-9-12-SC, The Rule on the Writ of Amparo [Sec. 19] effective October 24, 2007).

(f) Appeals from a judgment or final order in a petition for a writ of Habeas Data. The appeal may raise questions of fact or law or both (A.M. No. 08-1-16-SC, Rule on the Writ of Habeas Data [Sec. 19], effective February 2, 2008).


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2. Under Sec. 21 of the Rules on Summary Procedure, the decision of the Regional Trial Court in civil cases appealed to it is immediately executory without prejudice to any further appeal that may be taken therefrom.

D. Appeal by Certiorari to the Supreme Court (Rule 45)

Application of Rule 45 1. Appeal by certiorari to the Supreme Court, also

commonly known as petition for review on certiorari applies in the following cases:

(a) Appeal from a judgment or final order of the Re-gional Trial Court in cases where only questions of law are raised or are involved and the case is one decided by said court in the exercise of its original jurisdiction (Sec. 2[c], Rule 41, Rules of Court; Bar 1984);

This rule applies only when the decision of the Regional Trial Court is in the exercise of its original jurisdiction because when the decision is rendered by the Regional Trial Court in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, questions of law, or mixed questions of fact and law, the appeal shall be brought to the Court of Appeals by filing a petition for review under Rule 42 and even if only a question of law is raised (Quezon City v. ABS-CBN Broadcasting Corporation, 567 SCRA 496, 508-509).

A decision rendered by the Regional Trial Court in the exercise of its appellate jurisdiction, as when it was brought before it from the Municipal Trial Court, should be elevated to the Court of Appeals under Rule 42 instead of appealing directly before the Supreme Court under Rule 45 even if it raises a pure question of law.

In Five Star Marketing Co., Inc. v. Booc, 535 SCRA 28, 42-43, the Court clearly ruled:


(10) days from notice. The respondent shall file a comment, not a motion to dismiss (Sec. 4, Rule 42, Rules of Court).

4. If the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition (Sec. 6, Rule 42, Rules of Court).

If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required (Sec. 9, Rule 42, Rules of Court).

Residual jurisdiction The doctrine of residual jurisdiction also applies to Rule 42.

The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. However, the Regional Trial Court despite the perfection of the appeals may still issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2 of Rule 39, and allow withdrawal of the appeal provided these are done before the Court of Appeals gives due course to the petition (Sec. 8, Rule 42, Rules of Court). Recall that in an ordinary appeal, the residual jurisdiction of the Regional Trial Court may be exercised prior to the transmittal of the original record or the record on appeal (Sec. 9, Rule 41).

Stay of judgment 1. Except in civil cases decided under the Rules on Summary

Procedure, the appeal, as a rule, shall stay the judgment or final order, unless the Court of Appeals, the law or the rules shall provide otherwise (Sec. 8[b], Rule 42, Rules of Court).

CHAPTER EC POST JUDGMENT REMEDIES

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How to appeal 1. The appeal is made by filing a verified petition for review

with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition (Sec. 1, Rule 42, Rules of Court).

The appeal is perfected as to the petitioner upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees (Sec. 8[a], Rule 42, Rules of Court).

2. The petition shall be filed in the proper form required in Sec. 2 of Rule 42 stating among others, a concise statement of the matters involved, the issues raised, the specification of errors of law or fact, or both, allegedly committed by the trial court and the reasons or arguments relied upon for the allowance of the appeal. The petitioner shall likewise indicate the specific material dates showing that the petition was filed on time (Sec. 2, Rule 42, Rules of Court). The requirement to indicate the relevant dates is commonly called the material data rule and applies also to Rule 42, not only to a petition for certiorari under Rule 65. This petition also requires a certification against forum shopping (Sec. 2, 2nd par., Rule 42, Rules of Court).

The failure to comply with any of the requirements in Sec. 2 of Rule 42 regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal of the petition (Sec. 3, Rule 42, Rules of Court).

3. The Court of Appeals may dismiss the petition if it finds the same to be patently without merit, prosecuted merely for delay, or that the questions raised are too unsubstantial to require consideration (Sec. 4, Rule 42, Rules of Court).

If the court does not dismiss the petition, it may require the respondent to file a comment on the petition within ten


before the Court of Appeals gives due course to the petition (Sec. 8, Rule 42, Rules of Court).

2. The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. Court of Appeals, 458 SCRA 454, 465).

C. Petition for Review from the Regional Trial Courts to the Court of Appeals (Rule 42)

Application of Rule 42 Rule 42 applies to an appeal from the judgment or final order

of the Regional Trial Court to the Court of Appeals in cases decided by the former in the exercise of its appellate jurisdiction (Bar 1998; 1990; 1979; 2009).

Example: The plaintiff received an adverse judgment in a suit for collection of P350,000.00 filed with the Metropolitan Trial Court of Manila. He appealed from the judgment of the lower court with the appropriate Regional Trial Court and lost again. The judgment of the Regional Trial Court is a judgment rendered by it in the exercise of its appellate jurisdiction. If he desires to appeal from this judgment, he should avail of a petition for review under Rule 42.

When to appeal The appeal shall be made within fifteen (15) days from notice

of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. The court may grant an additional period of fifteen (15) days only provided the extension is sought (a) upon proper motion, and (b) there is payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days (Sec. 1, Rule 42, Rules of Court).


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5. Within forty-five (45) days from receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service upon the appellee (Sec. 7, Rule 44, Rules of Court).

Within forty-five days from the receipt of the appellant’s brief, the appellee shall file his own brief with proof of service to the appellant (Sec. 8, Rule 44, Rules of Court). Within twenty (20) days from receipt of the appellee’s brief, the appellant may file a reply brief answering points in the appellee’s brief not covered in his main brief (Sec. 9, Rule 44, Rules of Court). Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended (Sec. 12, Rule 44, Rules of Court).

In petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not filed. Instead, the parties shall file their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidences are already attached to the record (Sec. 10, Rule 44, Rules of Court).

Questions that may be raised on appeal The appellant may include in his assignment of errors any

question of law or fact that has been raised in the court below and is within the issues framed by the parties (Sec. 15, Rule 44, Rules of Court).

Residual jurisdiction 1. The term refers to the authority of a trial court to issue

orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2 of Rule 39, and allow withdrawal of the appeal provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Sec. 9, Rule 41) or in case of a petition for review under Rule 42,


How to appeal 1. The appeal to the Court of Appeals in cases decided by the

Regional Trial Court in the exercise of its original jurisdiction shall be taken by (a) filing a notice of appeal with the court which rendered the judgment or final order appealed from, and (b) serving a copy thereof upon the adverse party (Sec. 2[a], Rule 41, Rules of Court; Bar 1988).

A record on appeal shall be required in special proceedings and other cases of multiple or separate appeals when so required by law or the Rules (Sec. 2[a], Rule 41, Rules of Court). Where both parties are appellants, they may file a joint record on appeal (Sec. 8, Rule 41, Rules of Court).

2. Within the period for taking an appeal, the appellant shall pay to the clerk of the court, which rendered the judgment or final order appealed from, the full amount of the appellate court docket fee (Sec. 4, Rule 41, Rules of Court).

A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time (Sec. 9, Rule 41, Rules of Court).

3. Within thirty (30) days after perfection of all the appeals, the clerk of court shall verify the correctness and completeness of the records and if incomplete, to take such measures to complete such records, certify to the correctness of the records, to transmit the same to the appellate court, and to furnish the parties with copies of his letter of transmittal of the records to the appellate court (Sec. 10, Rule 41, Rules of Court).

4. Upon receiving the original record on appeal and the accompanying documents transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties (Sec. 4, Rule 44, Rules of Court).


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Mode of appeal from the Regional Trial Court to the Supreme Court

This mode is brought to the Supreme Court from the decision of the Regional Trial Court in the exercise of its original jurisdiction and only on questions of law (Sec. 2, Rule 41, Rules of Court; Five Star Marketing Corporation v. Booc, 535 SCRA 28; Quezon City v. ABS-CBN Broadcasting Corporation, G.R. No. 166408, October 6, 2008; Republic v. Malabanan, G.R. No. 169067, October 6, 2010).

Application of Rule 41 on ordinary appeal Rule 41 applies to appeals from the judgment or final order of

the Regional Trial Court in the exercise of its original jurisdiction (Sec. 2[a], Rule 41, Rules of Court). This appeal is called an “ordinary appeal” (Sec. 2[a], Rule 41, Rules of Court).

Example: If a judgment by the Regional Trial Court in an action for specific performance is to be appealed from, Rule 41 will govern the appeal. This is because an action for specific performance is initially filed with the said court. Any judgment rendered by it on the case would then be a judgment rendered in the exercise of its original jurisdiction.

On the other hand, if a litigant loses in the MTC and on appeal loses in the RTC, the mode of appeal to the Court of Appeals is by way of Rule 42. This is because the decision of the RTC would be one in the exercise of its appellate jurisdiction.

When to appeal (Bar 2011) The appeal shall be taken within fifteen (15) days from notice

of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order (Sec. 3, Rule 41, Rules of Court).

In habeas corpus cases, the appeal shall be taken, within forty-eight (48) hours from notice of judgment or final order (Sec. 3, Rule 41, Rules of Court; Bar 2011).


(c) Petition for review on certiorari or appeal by certiorari to the Supreme Court. This mode is brought to the Supreme Court from the decision of the Regional Trial Court in the exercise of its original jurisdiction and only on questions of law (Sec. 2, Rule 41, Rules of Court; Five Star Marketing Corporation v. Booc, 535 SCRA 28, 41-43; Quezon City v. ABS-CBN Broadcasting Corporation, G.R. No. 166408, October 6, 2008; Republic v. Malabanan, G.R. No. 169067, October 6,2010).

Modes of appeal from the Regional Trial Court to the Court of Appeals (Bar 2009)

1. There are two modes of appeal from the RTC to the CA, thus:

(a) by writ of error (ordinary appeal) - where the appealed judgment was rendered in a civil or criminal action by the Regional Trial Court in the exercise of its original jurisdiction; or

(b) by petition for review - where the judgment was rendered by the Regional Trial Court in the exercise of its appellate jurisdiction (Leynes v. Former Tenth Division of the Court of Appeals, G.R. No. 154462, January 19, 2011; Bar 2010).

2. The first mode of appeal, the ordinary appeal under Rule 41 of the Rules of Court, is brought to the CA from the RTC, in the exercise of its original jurisdiction, and resolves questions of fact or mixed questions of fact and law. The second mode of appeal, the petition for review under Rule 42 of the Rules of Court, is brought to the CA from the RTC, acting in the exercise of its appellate jurisdiction, and resolves questions of fact or mixed questions of fact and law. The third mode of appeal, the appeal by certiorari under Rule 45 of the Rules of Court, is brought to the Supreme Court and resolves only questions of law” (Heirs of Cabigas v. Limbago, G.R. No. 175291, July 27, 2011).


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2. Under the same provision, if the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction and shall decide the case in accordance with the Rules. The court may, however, admit amended pleadings and additional evidence in the interest of justice.

3. Note that when a case is dismissed pursuant to a motion to dismiss or motu proprio for lack of jurisdiction, the order of dismissal is one without prejudice because the plaintiff may refile the complaint in the court with the proper jurisdiction. By the terms of Sec. 1(g) of Rule 41 as amended, the order dismissing an action without prejudice is not appealable. The tenor, however, of Sec. 8 of Rule 40 on the other hand, indicates that the rule allows an appeal from an order of the MTC dismissing a case for lack of jurisdiction. Sec. 8 of Rule 40 should be considered as an exception to Sec. 1 of Rule 41 which precludes an appeal from an order dismissing an ac-tion without prejudice.

B. Appeal from the Regional Trial Courts to the Court of Appeals (Rule 41)

Modes of appeal from the decision of the Regional Trial Court (Bar 2009)

There are three modes of appeal from the decision of the Regional Trial Court, namely:

(a) An ordinary appeal or appeal by writ of error, where judgment was rendered by the court in the exercise of its original jurisdiction. This mode of appeal is governed by Rule 41 and is taken to the Court of Appeals on questions of fact or mixed questions of fact and law.

(b) Petition for review, where judgment was rendered by the court in the exercise of its appellate jurisdiction. This mode of appeal is covered by Rule 42 and is brought to the Court of Appeals on questions of fact, questions of law or mixed questions of fact and law.


of which shall be furnished the appellee (Sec. 7[b], Rule 40, Rules of Court).

2. For the appellant, the filing of a memorandum is vital to his appeal. Failure to so file shall be a ground for the dismissal of the appeal. The memorandum shall briefly discuss the errors imputed to the lower court. The appellee may, if his so desires, file his memorandum within fifteen (15) days from receipt of the appellant’s memorandum (Sec. 7[b], Rule 40, Rules of Court).

When case is deemed submitted for decision The case shall be considered submitted for decision upon the

filing of the memorandum of the appellee, or the expiration of the period to do so (Sec. 7[c], Rule 40, Rules of Court).

Basis of the decision The Regional Trial Court shall decide the case on the basis of

the entire record of the proceedings had in the court of origin and such memoranda as are filed (Sec. 7[c], Rule 40, Rules of Court).

Appeal from an order dismissing a case for lack of jurisdic* tion 1. A case may be dismissed in the Municipal Trial Court

without a trial on the merits. This occurs for instance, when a motion to dismiss is filed and granted in accordance with Rule 16 of the Rules of Court. If an appeal is taken from the dismissal by the lower court, the Regional Trial Court may affirm or reverse it, as the case may be.

Under Sec. 8 of Rule 40, if, however, the dismissal in the Municipal Trial Court is made on the ground of lack of jurisdiction over the subject matter, and the Regional Trial Court on appeal affirms the dismissal, the action of the latter court, if it has jurisdiction, shall not be confined to a mere affirmation of the dismissal if it has jurisdiction over the subject matter. Instead, the rule requires the Regional Trial Court to try the case on the merits as if the case was originally filed with it.


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2. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be (Sec. 5, Rule 40, Rules of Court).

3. Within fifteen (15) days from the perfection of the appeal, the clerk of court of the lower court shall transmit the original record or the record on appeal, together with transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court (Sec. 6, Rule 40, Rules of Court).

Perfection of the appeal 1. A party’s appeal by notice of appeal is deemed perfected

as to him upon the filing of the notice of appeal in due time. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time (Sec. 4, Rule 40 in relation to Sec. 9, Rule 41, Rules of Court; Bar 1999).

2. The notice of appeal does not require the approval of the court. The function of the notice of appeal is merely to notify the tried court that the appellant was availing of the right to appeal, and not to seek the court’s permission that he be allowed to pose an appeal. The trial court’s only duty with respect to a timely notice of appeal is to transmit the original record of the case to the appellate court (Crisologo v. Daray, 562 SCRA 382, 391).

Duty of the clerk of court of the RTC Upon receipt of the complete record or the record on appeal,

the clerk of court of the Regional Trial Court shall notify the parties of such fact (Sec. 7[a], Rule 40, Rules of Court).

Submission of memorandum 1. Within fifteen (15) days from such notice, it shall be the

duty of the appellant to submit a memorandum, copy


with a copy of his brief (Tiangco v. Bank of the Philippines, 632 SCRA 256, 267, October 6, 2010).

A. Appeal from Municipal Trial Courts to the Regional Trial Courts (Rule 40)

Where to appeal from a judgment or final order of a Municipal Court

An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains (Sec. 1, Rule 40, Rules of Court).

When to appeal 1. An appeal may be taken within fifteen (15) days after

notice to the appellant of the judgment or final order appealed from (Sec. 2, Rule 40, Rules of Court; Bar 1991).

2. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgment or final order (Sec. 2, Rule 40, Rules of Court).

3. A record on appeal shall be required only in special proceedings and in cases of multiple or separate appeals (Sec. 3, Rule 40, Rules of Court).

How to appeal; contents of notice of appeal 1. The appeal is taken by (a) filing a notice of appeal with

the court that rendered the judgment or final order appealed from, and by (b) serving a copy of the notice to the adverse party (Sec. 3, Rule 40, Rules of Court). Thus, if the judgment was rendered by the Metropolitan Trial Court, the notice of appeal must be filed with said court, not with the Regional Trial Court (Sec. 3, Rule 40, Rules of Court).

The notice of appeal shall (a) indicate the parties to the appeal, (b) the judgment or final order or part thereof appealed from, and (c) state the material dates showing the timeliness of the appeal (Sec. 3, Rule 40, Rules of Court).

CHAPTER IX 589 POST JUDGMENT REMEDIES

(3) The failure of an appellant to file his brief within the reglementary period does not have the effect of causing the automatic dismissal of the appeal;

(4) In case of late filing, the appellate court has the power to still allow the appeal; however, for the proper exercise of the court’s leniency it is imperative that:

(a) the circumstances obtaining warrant the court’s liberality;

(b) that strong considerations of equity justify an exception to the procedural rule in the interest of substantial justice;

(c) no material injury has been suffered by the appellee by the delay;

(d) there is no contention that the appellees’ cause was prejudiced;

(e) at least there is no motion to dismiss filed. (5) In case of delay, the lapse must be for a reasonable

period; and (6) Inadvertence of counsel cannot be considered as an

adequate excuse as to call for the appellate court’s indulgence except:

(a) where the reckless or gross negligence of counsel deprives the client of due process of law;

(b) when application of the rule will result in outright deprivation of the client’s liberty or property; or

(c) where the interests of justice so require.” (See Beatingo v. Gasis, 642 SCRA 539, 547- 548, February 9, 2011).

5. Also, a litigant’s failure to furnish his opponent with a copy of his appeal brief does not suffice to warrant the dismissal of that appeal. In such an instance, all that is needed is for the court to order the litigant to furnish his opponent


2. The following are the grounds for the dismissal of an appeal in the Supreme Court motu proprio by the Court or on motion (Sec. 5, Rule 56, Rules of Court):

“(a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other lawful

fees or to make a deposit for costs; (d) Failure to comply with the requirements regarding proof

of service and contents of and the documents which should accompany the petition;

(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;

(f) Error in the choice or mode of appeal; and (g) The fact that the case is not appealable to the Supreme

Court.” 3. While an appeal may be dismissed for failure of the

appellant “to serve and file the required number of copies of his brief or memorandum within the time provided,” this provision accordingly, merely confers a power and not a duty to dismiss, it being directory and not mandatory. 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).

4. In The Government of the Kingdom of Belgium v. Court of Appeals, 551 SCRA 223, 241, the Court laid down the basic rules with respect to the issue of the non-filing of appellant’s brief with the CA and its consequences, to wit:

“(1) The general rule is for the Court of Appeals to dismiss an appeal when no appellant’s brief is filed within the reglementary period prescribed by the rules;

(2) The power conferred upon the Court of Appeals to dismiss an appeal is discretionary and directory and not ministerial or mandatory;


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“An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as provided in Sec. 5, Rule 40 and Sec. 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec. 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copies of his brief or mem-orandum within the time provided by these Rules;

(f) 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;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the pre-liminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not appealable.”


case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 186,194).

Note: If, however, the trial court has fully and finally resolved all issues in the complaint for expropriation, there is no need to file a record on appeal even in an expropriation case.

Illustrative of this rule is the case of Marinduque Mining and Industrial Corporation v. Court of Appeals, 567 SCRA 483, 493-494. In its decision, the tried court already determined two main issues, namely, Respondent NAPOCOR’s authority to exercise the power of eminent domain and the just compensation for the property sought to be expropriated. NAPOCOR initially filed a motion for reconsideration but after the trial court denied the motion, NAPOCOR no longer appealed the decision. Then, in a subsequent Supplemental Decision, the trial court fixed the just compensation for what it called the “dangling area,” which is the area not subject of the complaint for expropriation but which the court held should nevertheless also be paid by NAPOCOR because of consequential damages to the property. NAPOCOR filed a motion for reconsideration of this Supplemental Decision and the trial court denied the motion. NAPOCOR then filed a notice of appeal but did not file a record on appeal. Petitioner raised issue as to this failure alleging that a record on appeal is required in an appeal of a judgment in an expropriation case. The Court ruled that at this stage, the trial court had no more issues to resolve and there was no reason why the original records of the case must remain with the trial court. There was then no need for NAPOCOR to file a record on appeal because the original records could already be sent to the appellate court.

Dismissal of an appeal 1. The following are the grounds for the dismissal of an

appeal by the Court of Appeals on its own motion or on that of the appellee (Sec. 1, Rule 50, Rules of Court)-.

CHAPTER IX 585 POST JUDGMENT REMEDIES

since the original records remain with the trial court, it still can resolve the other issues of the case not made subject of the appeal.

Illustration: Jurisprudence recognizes the existence of multiple appeals in a complaint for expropriation because there are two stages in every action for expropriation. The first stage is the determination of the lawful right of the plaintiff to take the property sought to be expropriated culminating in an order of expropriation (Sec. 4, Rule 67, Rules of Court).

This order of expropriation may be appealed by any party by filing a record on appeal (Tan v. Republic, 523 SCRA 203). The second stage is the determination by the court of the just compensation for the property sought to be expropriated. A second and separate appeal may be taken from this order fixing the just compensation (Tan v. Republic, supra).

As held in Tan v. Republic, 523 SCRA 203, 211-212:

x x x “ x x x An order of expropriation is final. An order of

dismissal, if this be ordained, would be a final one, as it finally disposes of the action and leaves nothing more to be done by the court on the merits. The order of expro-priation would also be a final one for after its issuance, no objection to the right of condemnation shall be heard. The order of expropriation may be appealed by any party aggrieved thereby by filing a record on appeal.

xxx The order fixing the just compensation on the basis of the evidence before the court and findings of the commissioners would likewise be a final one, as it would leave nothing more to be done by the court regarding this issue. A second and separate appeal may be taken from this order fixing the just compensation.”

3. Multiple appeals are allowed in special proceedings, in actions for recovery of property with accounting, in actions for partition of property with accounting, in the special civil actions of eminent domain and foreclosure of mortgage. The rationale behind allowing more than one appeal in the same


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, 479 SCRA 594, 602).

2. Note, however, that in the exercise of its impartial jurisdiction, the Court allows a liberal construction of the rules on the manner and periods for perfecting appeals in order to serve the demands of substantial justice.

The established rule is that the payment in full of the docket fees within the prescribed period is mandatory. Nevertheless, this rule must be qualified, to wit:

First, the failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal;

Second, such power should be used in the exercise of the Court’s sound discretion “in accordance with the tenets of justice and fair play and with great deal of circumspection considering all attendant circumstances” (Republic v. Spouses Luriz, 513 SCRA 140,151 citing Buenaflor v. Court of Appeals, 346 SCRA 563, 567).

Record on appeal; notice of appeal 1. 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 (Sec. 2[a], Rule 41, Rules of Court). No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the Rules of Court so require (Sec. 2[a], Rule 41, Rules of Court).

2. In a case where multiple appeals are allowed, a party may appeal only a particular incident in the case and not all of the matters involved in the same case. The others which are not made the subject of the appeal remain to be resolved by the trial court. The record on appeal is required so the appellate court may have a record of the proceedings to resolve a separate and distinct issue raised in the appeal, and


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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 avoid dispensing piecemeal justice (Asian Terminals, Inc. v. NLRC, 541 SCRA 105,115).

Appeals in criminal cases 1. In a criminal case, an appellate court appears to enjoy

wide latitude in deciding an appealed case. Thus, it was held that in criminal cases, it is axiomatic that

where an accused appeals the decision against him, he throws open the whole case for review and it then becomes the duty of the Supreme Court to correct any error as may be found in the appealed judgment, whether it was made the subject of assignment of errors or not (Dico v. Court of Appeals, 452 SCRA 441, 454).

2. An appeal in a criminal case opens the entire case for review. The Court can correct errors unassigned in the appeal (People v. De la Torre, 567 SCRA 651 citing People v. Montinola, 543 SCRA 412).

Payment of docket fee 1. Time and again, the Court has consistently held that

payment of 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 executory (Regalado v. Go, 514 SCRA 616, 634).

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. The full amount of the appellate court docket and other lawful fees must be paid to the clerk of the court which rendered the judgment or final order appealed from. Without the payment of docket fees the appeal is not perfected and the appellate court does not acquire jurisdiction to entertain the appeal, thereby rendering the decision sought to be appealed final and executory. Non-


2. Jurisprudence likewise provides some exceptions to the rule.

In Comilang v. Burcena, 482 SCRA 342, 349, the Court categorically made it clear that an appellate court is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal in the following instances:

(a) grounds not assigned as errors but affecting jurisdiction over the subject matter;

(b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law;

(c) matters not assigned as errors on appeal but con-sideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice;

(d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored;

(e) matters not assigned as errors on appeal but closely related to an error assigned; and

(f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.

3. In one case, although petitioners did not raise as issue the appellate court’s reversal of the award of damages in their favor, the Court used its discretion to pass upon this matter and determine whether or not there is sufficient justification for the award of damages ("Spouses Romulo v. Spouses Layug, 501 SCRA 262, 276).

4. It has also been held that the Court of Appeals for instance, is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal,


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and offend the basic rules of fair play, justice and due process (Canada v. All Commodities Marketing Corporation, 569 SCRA 321, 326).

3. It is well-settled that 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, 635 SCRA 357, 371, November 17, 2010).

4. The rule that a party cannot change his theory on appeal also applies to criminal cases (People v. Mamaril, 632 SCRA 369, 379, October 6, 2010).

When errors not raised on appeal may be considered 1. The rule that the appellate court shall not consider errors

not raised in the assignment of errors is not an absolute one. Sec. 8 of Rule 51 precludes its absolute application allowing as it does certain errors which even if not assigned may be ruled upon by the appellate court. Hence, the court may consider an error not raised on appeal provided the same falls within any of the following categories:

(a) It is an error that affects the jurisdiction over the subject matter;

(b) It is an error that affects validity of the validity of the judgment appealed from;

(c) It is an error which affects the validity of the proceedings;

(d) It is an error closely related to or dependent on an assigned error and properly argued in the brief (Heirs of Marcelino Doronio v. Heirs of Fortunato Doronio, 541 SCRA 479).

(e) It is a plain and clerical error (Sec. 8, Rule 51, Rules of Court). The fact that the appellant’s brief did not raise the lack of

jurisdiction of the trial court should not prevent the Court from taking up the issue of lack of jurisdiction (Dy v. NLRC, 145 SCRA 211, 213; Bar 1993).


tenets of fair play (Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, 504 SCRA 484, 494-495).

Issues that the appellate court decides on appeal; no change of theory on appeal

1. A reading of the terms of Sec. 8 of Rule 51 discloses a basic appellate rule with respect to unassigned errors: The appellate court shall consider no error unless stated in the assignment of errors.

Accordingly, 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 (Bank of Commerce v. Serrano, 451 SCRA 484, 491). For an appellate court to consider a legal question, it should have been raised in the court below (Philippine National Oil Company v. Court of Appeals, 457 SCRA 32, 104). It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. It is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot v. Poblete, 514 SCRA 370,379; Pineda v. Heirs ofEliseo Guevara, 515 SCRA 627, 634).

2. As a rule, no question will be entertained on appeal unless it has been raised in the court below. Points of law, theories, issues and arguments not brought to the attention of the lower court ordinarily will not be considered by a reviewing court because they cannot be raised for the first time at that late stage. Basic considerations of due process underlie this rule. It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. To permit petitioner at this stage to change his theory would thus be unfair to respondent,


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Remedy in case the judgment or final order is not appealable

1. In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1, Rule 41, Rules of Court).

2. As of December 27, 2007, an aggrieved party may no longer assail an order denying a motion for new trial or a motion for reconsideration by way of Rule 65 as per A.M. No. 07-7-12-SC, such ground having been removed from the enumeration in Sec. 1 of Rule 41. The proper remedy is to appeal from the judgment (Sec. 9, Rule 37, Rules of Court).

Issues that may be raised on appeal

1. It is already well-settled in this jurisdiction that a party may not change his theory of the case on appeal. Such a rule has been expressly adopted in Rule 44, Section 15 of the 1997 Rules of Civil Procedure, which provides —

“SEC. 15. Questions that may be raised on appeal. — Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.”

2. Also, defenses not pleaded in the answer may not be raised for the first time 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. Accordingly, “courts of justice have no jurisdiction or power to decide a question not in issue.” Thus, a judgment that goes beyond the issues and purports to adjudicate something on which the court did not hear the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental


If the motion to dismiss based on improper venue is granted, the order of dismissal is an order without prejudice, i.e., without prejudice to the refiling of the complaint. Such order under the unequivocal terms of Sec. 1(g) of Rule 41 as amended, is not appealable.

(b) The RTC upon proper motion and hearing dismissed a complaint for violation of the rule requiring a certification against forum shopping. The order dismissing the complaint is generally not appealable. Under Sec. 5 of Rule 7, a dismissal of this nature is as a rule, a dismissal without prejudice. An order dismissing an action without prejudice is not appealable under Sec. 1(g) of Rule 41 as amended.

(c) In one case, a party filed a petition for relief from judgment. From the order denying the petition, the petitioner filed a petition for review on certiorari under Rule 45. It is obvious that the petitioner availed of the wrong remedy. A petition under Rule 45 is a mode of appeal. Under Sec. 1(a) of Rule 41 as amended, the denial of a petition for relief from judgment is subject only to a special civil action under Rule 65 and not through a petition for review on certiorari under Rule 45 which is a mode of appeal (Trust International Paper Corporation v. Pelaez, 499 SCRA 552, 560').

(d) Even if the notice of appeal is filed within 15 days from notice of a motion denying a motion for new trial or reconsideration if the subject of the motion is an order dismissing the action without prejudice, the filing of a notice of appeal is the wrong remedy because an order dismissing an action without prejudice is not appealable. The order may be the subject of the special civil action of certiorari under Rule 65 (Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234, 249).


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1. An order denying a motion for new trial or a motion for reconsideration. (This is no longer part of the enumeration as of December 27, 2007per A.M. No. 07-7-12-SC).

(a) An order denying a petition for relief or any similar motion seeking relief from judgment;

(b) An interlocutory order; (c) An order disallowing or dismissing an appeal (Heirs

of Gaudiano v. Benemerito, 516 SCRA 416, 423). (d) 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;

(e) An order of execution; (f) A judgment or final order for or against one or more

of several parties or in separate claims, counterclaims, cross-claims, and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(g) An order dismissing an action without prejudice. (Bar 2011)

2. Examples: (a) Defendant filed a motion to dismiss based on

improper venue. The motion was denied. The denial of the motion does not completely dispose of the case, hence, the order denying the motion is merely interlocutory. An interlocutory order is not appealable under the clear terms of Sec. 1(b) of Rule 41.

Jurisprudence explains the rationale of the rule: “An interlocutory order is not appealable until after the rendition of the judgment on the merits for a contrary rule would delay the administration of justice and unduly burden the courts” (Sime Darby Employees Association v. NLRC, 510 SCRA 204,217).


Appeals, 479 SCRA 594, 601; United Field Sea Watchman and Checkers Agency v. Requillo, 510 SCRA 165, 170; Beatingo v. Gasis, 642 SCRA 539, 548, February 9, 2011).

2. The right to appeal is not a constitutional, natural or inherent right. It is a statutory privilege and of statutory origin. It is available only if granted or as provided by statutes (Yu v. Samson-Tatad, 642 SCRA 421, 425, February 9, 2011; See also Canton v. City of Cebu, 515 SCRA 441, 448; Phillips Seafoods v. The Board of Investments, 578 SCRA 69, 76; Mendoza v. United Coconut Planters Bank, Inc., 641 SCRA 333, 345, February 2, 2011).

3. The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. This is true even if the error, or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion in the findings of facts or of law set out in the decision (Association of Integrated Security Force of Bislig-ALU v. Court of Appeals, 467 SCRA 483, 490-491).

A subsequent case similarly held that a party is not allowed to question the decision on the merits and also invoke the extraordinary remedy of certiorari under Rule 65 and an ordinary appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel out the other. The existence and availability of the right to appeal proscribes resort to certiorari because one of the requirements for availment of the latter is that there should be no appeal available (Manacop v. Equitable-PCI Bank, 468 SCRA 256, 270).

4. An appeal may be taken from judgments or final orders that completely dispose of the case (Sec. 1, Rule 41, Rules of Court). An interlocutory order is not appealable until after the finality of the judgment on the merits.

Judgments or orders that are not appealable Certain judgments and orders are specifically declared as not

appealable. Thus, under Sec. 1 of Rule 41, no appeal may be taken from:


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Partial new trial 1. If the court finds that a motion affects the issues of the

case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the court may grant a new trial as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37, Rules of Court). The effect of this order is a partial new trial.

2. When there is an order for a partial new trial, i.e., less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial (Sec. 8, Rule 37, Rules of Court).

Second motion for new trial While a second motion for reconsideration is not allowed, a

second motion for new trial is authorized by the Rules. A motion for new trial shall include all grounds then available. Those not so included are deemed waived. However, when a ground for a new trial was not existing or available when the first motion was made, a second motion for new trial may be filed within the period allowed but excluding the time during which the first motion had been pending (Sec. 5, Rule 37, Rules of Court).

Motion for new trial in summary procedure A motion for new trial is not allowed in cases governed by

summary procedure (Sec. 19[c], TV, 1991 Revised Rules on Summary Procedure) and small claims (Sec. 14[c]).

APPEALS General principles on appeal

1. The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law (Stolt- Nielsen v. NLRC, 477 SCRA 516, 527; Cu-Unjieng v. Court of


notice of appeal for the same reasons and grounds as the “fresh period” rule governing a denial of a motion for reconsideration (Neypes v. Court of Appeals, supra).

Order of denial, not appealable The “fresh period” rule does not refer to the period within

which to appeal from the order denying the motion for new trial because the order is not appealable under Sec. 9 of Rule 37.

Remedy when motion is denied May the order denying the motion for new trial be assailed by

a petition for certiorari under Rule 65? The answer used to be in the affirmative. Sec. 1 of Rule 41 clearly provided then for the proper remedy against the order: “In all instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.”

However, effective December 27, 2007, an order denying a motion for new trial is no longer assailable by certiorari because of the amendment to Rule 41 by A.M. No. 07-7-12- SC. Deleted from those matters from which no appeal can be taken and from which order Rule 65 may be availed of, is “an order denying a motion for new trial or a motion for reconsideration.” The amendment seeks to prevent the filing of a petition for certiorari under Rule 65 based on an order denying a motion for new trial or a motion for reconsideration. The remedy available, therefore, would be that prescribed under Sec. 9 of Rule 37, i.e., to appeal from the judgment or final order.

Effect of granting the motion for new trial (Bar 2011) If the court grants the motion, the original judgment or final

order shall be vacated, and the action shall stand for trial de novo. The recorded evidence taken upon the former trial shall be used at the new trial without retaking the same if the evidence is material and competent (Sec. 6, Rule 37, Rules of Court).


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Newly-discovered evidence; requisites Before a new trial maybe granted on the ground of newly

discovered evidence, it must be shown (1) that the evidence was discovered after trial; (2) that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (3) that it is material, not merely cumulative, corroborative, or impeaching; and (4) the evidence is of such weight that it would probably change the judgment if admitted. If the alleged newly discovered evidence could have been very well presented during the trial with the exercise of reasonable diligence, the same could not be considered newly discovered evidence (Ybiernas v. Tanco- Gabaldon, G.R. No. 178925, June 1, 2011).

Gross negligence of counsel not a ground for new trial Petitioner’s argument that his counsel’s negligence was so

gross that he was deprived of due process fails to impress. Gross negligence is not one of the grounds for a motion for a new trial. We cannot declare his counsel’s negligence as gross as to liberate him from the effects of his failure to present countervailing evidence. The Court does not consider as gross negligence the counsel’s resort to dilatory schemes, such as (1) the filing of at least three motions to extend the filing of petitioner’s answer; (2) his nonappearance during the scheduled pre-trials; and (3) the failure to file petitioner’s pre-trial brief, even after the filing of several motions to extend the date for filing (Uy v. First Metro Integrated Steel Corporation, supra at 713).

Resolution of the motion The motion shall be resolved within thirty (30) days from the

time it is submitted for resolution (Sec. 4, Rule 37, Rules of Court).

Denial of the motion; the “fresh period” rule If the motion is denied, the movant has a “fresh period” of

fifteen (15) days from receipt or notice of the order denying or dismissing the motion for new trial within which to file a


(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result (Sec. 1, Rule 37, Rules of Court; Bar 1988).

2. A motion for the cause mentioned in paragraph “a” shall be supported by affidavits of merit. A motion based on the ground in letter “b” shall be supported by (a) affidavits of the witnesses by whom such evidence is expected to be given, or (b) by duly authenticated documents which are proposed to be introduced in evidence (Sec. 2, Rule 37, Rules of Court).

Non-compliance with this requirement would reduce the motion to a mere pro forma motion.

Under the explicit provisions of the rule (Sec. 2, Rule 37, Rules of Court), a pro forma motion for reconsideration shall not toll the reglementary period of appeal.

Affidavit of merit 1. Under the Rules, the moving party must show that he

has a meritorious defense. The facts constituting the movant’s good and substantial defense, which he may prove if the petition were granted, must be shown in the affidavit which should accompany the motion for a new trial. Mere allegations that one has a “meritorious defense” and a “good cause” are mere conclusions which do not provide the court with any basis for determining the nature and merit of the case. An affidavit of merit should state facts, and not mere opinion or conclusions of law. In a case, petitioner’s motion for new trial and affidavit of merit did not mention the evidence which he was prevented from introducing, nor did it allege that such evidence would change the outcome of the case (Uy v. First Metro Integrated Steel Corporation, 503 SCRA 704, 712-713).

2. An affidavit of merit is required in a motion for new trial founded on fraud, accident, mistake or excusable negligence (Uy v. First Metro Integrated Steel Corporation, supra at 712).


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lowed (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court; Bar 1975). 2. The period for appeal is within fifteen (15) days after

notice to the appellant of the judgment or final order appealed from (Sec. 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule 45, Rules of Court). Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only (a) in special proceedings, and (b) other cases of multiple or separate appeals (Sec. 3, Rule 40, Rules of Court).

3. A motion for new trial is prohibited in cases covered by the Rule on Summary Procedure (Sec. 19[c], Revised Rule on Summary Procedure). It is also prohibited under the Rule of Procedure for Small Claims Cases (Sec. 14[c], A.M. No. 08- 8-7-SC).

Effect of the filing of the motion on the period to appeal The filing of a timely motion for new trial interrupts the period

to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court).

Form of a motion for new trial Like a motion for reconsideration, the motion for new trial

shall be made in writing, stating the ground or grounds therefore, a written notice of which shall be served by the movant on the adverse party (Sec. 2, Rule 37, Rules of Court).

Grounds for a motion for new trial (Bar 2011) 1. The aggrieved party may move the trial court to set aside

the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or


Partial reconsideration If the court finds that a motion affects the issues of the case as

to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37, Rules of Court).

The “single motion” rule A party shall not be allowed to file a second motion for

reconsideration of a judgment or a final order. The rule states: “No party shall be allowed a second motion for reconsideration of a judgment or final order” (Sec. 5, Rule 37, Rules of Court).

Be reminded that the prohibition on a second motion applies only when the motion is directed against a judgment or a final order. The rule does not apply to a motion for reconsideration of an interlocutory order.

Motion for reconsideration in summary procedure A motion for reconsideration of a judgment is not allowed in

cases governed by summary procedure (Sec. 19[c], IV, 1991 Revised Rules on Summary Procedure and small claims (Sec. 14[c]).

B. Motion For New Trial (Rule 37) Nature of a new trial

“A new trial is a remedy that seeks to “temper the severity of a judgment or prevent a failure of justice.” xxx The grant of a new trial is, generally speaking, addressed to the sound discretion of the court which cannot be interfered with unless a clear abuse thereof is shown” (Ybiernas v. Tanco-Gabaldon, G.R. No. 178925, June 1, 2011).

When to file 1. A motion for new trial is filed within the period for taking

an appeal (Sec. 1, Rule 37, Rules of Court). No motion for extension of time to file a motion for new trial shall be al-


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Remedy when motion is denied 1. The remedy from an order denying a motion for re-

consideration is not to appeal from the order of denial. The order is not appealable. The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration (Sec. 9, Rule 37, Rules of Court).

2. May the order denying the motion for reconsideration be assailed by a petition for certiorari under Rule 65? The answer used to be in the affirmative. Sec. 1 of Rule 41 clearly provided then for the proper remedy against the order: “In all instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.”

However, effective December 27, 2007, it is submitted that an order denying a motion for reconsideration is no longer assailable by certiorari because of the amendment to Rule 41 by A.M. No. 07-7-12-SC. Deleted from those matters from which no appeal can be taken and from which order a Rule 65 petition may be availed of, is “an order denying a motion for new trial or a motion for reconsideration.” The amendment obviously seeks to prevent the filing of a petition for certiorari under Rule 65 based on an order denying a motion for new trial or a motion for reconsideration. The remedy available therefore, would be that prescribed under Sec. 9 of Rule 37, i.e., to appeal from the judgment or final order.

Effect of granting a motion for reconsideration 1. If the court grants the motion, i.e., it finds that excessive

damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly (Sec. 3, Rule 37, Rules of Court).

The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel v. Alegre, 172 SCRA 315, 325).


(e) Except as provided in the last paragraph of Sec. 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.

Clearly, if the modes of appeal to the CA (in cases where the RTC exercised its appellate jurisdiction) and to this Court in civil and criminal cases are the same, no cogent reason exists why the periods to appeal from the RTC (in the exercise of its original jurisdiction) to the CA in civil and criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure should be treated differently.

Were we to strictly interpret the “fresh period rule” in Neypes and make it applicable only to the period to appeal in civil cases, we shall effectively foster and encourage an absurd situation where a litigant in a civil case will have a better right to appeal than an accused in a criminal case - a situation that gives undue favor to civil litigants and unjustly discriminates against the accused- appellants. It suggests a double standard of treatment when we favor a situation where property interests are at stake, as against a situation where liberty stands to be prejudiced. We must emphatically reject this double and unequal standard for being contrary to reason. Over time, courts have recognized with almost pedantic adher-ence that what is contrary to reason is not allowed in law - Quod est inconveniens, aut contra rationem non permis- sum est in lege.”

Order of denial, not appealable The “fresh period” rule does not refer to the period within

which to appeal from the order denying the motion for recon-sideration but to the period within which to appeal from the judgment itself because an order denying a motion for recon-sideration is not appealable.

The words of Sec. 9 of Rule 37 are clear: “An order denying a motion for new trial or recon-

sideration is not appealable, the remedy being an appeal from the judgment or final order.”


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First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that a[t]he period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from.” Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction.

Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned - the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed.

Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure, thus:

“SEC. 3. How appeal taken, — xxx (b) The appeal to the Court of Appeals in cases decided

by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

xxx


8. The ‘fresh period’ rule has a retroactive application to cases pending and undetermined upon its effectivity.

The Court explained, thus:

“The determinative issue is whether the “fresh period” rule announced in Neypes could retroactively apply in cases where the period for appeal had lapsed prior to 14 September 2005 when Neypes was promulgated. That question may be answered with the guidance of the general rule that procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage, there being no vested rights in the rules of procedure. Amendments to procedural rules are procedural or remedial in character as they do not create new or remove vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing” (Fil-Estate Properties, Inc. v. Homena-Valencia, 555 SCRA 345, 349-350; Sumiran v. Damaso, 596 SCRA 450, 456-457; Manaloto v. Veloso III, 532 SCRA 347, 361, October 6, 2010; See also for further reading, Go v. Sunbanon, G.R. No. 168240, February 9, 2011).

Application of the Neypes rule to criminal cases In Judith Yu v. Samson- Tatad, G.R. No. 170979, February 9,

2011, the rule in Neypes has been held to be applicable to criminal cases. Central to the ruling of the Court in Judith Yu are the provisions of Sec. 39 of BP 129 as amended which provides that the period for appeal shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from. This period of appeal is, by the clear tenor of Sec. 39, applicable “in all cases” hence, covers criminal cases as well.

The Court explained:

“x x x While Neypes involved the period to appeal in civil cases, the Court’s pronouncement of a “fresh period” to appeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons:


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Bank of the Philippine Islands, 514 SCRA 223, 226-227; De los Santos v. Vda. De Mangubat, 535 SCRA 411, 421- 422; Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234, 246-247).

7. The case of Manaloto v. Veloso, 632 SCRA 347, 359- 361, citing the earlier case of Sumiran v. Damaso, 596 SCRA 450, clearly declared that the rule in Neypes was adopted by virtue of the power of the Supreme Court to amend, repeal and create new procedural rules in all courts. By allowing a fresh period of 15 days within which to file a notice of appeal in the RTC, counted from receipt of the order dismissing or denying a motion for new trial or motion for reconsideration, the appeal periods provided in the Rules would be standardized and do away with the confusion as to when the 15-day appeal period should be counted.

The Court further stated:

“To recapitulate, a party-litigant may either file his notice of appeal within 15 days from receipt of the Regional Trial Court’s decision or file it within 15 days from receipt of the order (the “final order”) denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3.

x x x With the advent of the “fresh period rule,” parties who

availed themselves of the remedy of motion for reconsideration are now allowed to file a notice of appeal within fifteen days from the denial of that motion.

x x x

The “fresh period rule” is irrefragably procedural, prescribing the manner in which the appropriate period for appeal is to be computed or determined and, therefore, can be made applicable to actions pending upon its effectivity, such as the present case, without danger of violating anyone else’s rights.”


view the case and, in the process, minimize and/or rectify any error of judgment. While we aim to resolve cases with dispatch and to have judgments of courts become final at some definite time, we likewise aspire to deliver justice fairly.

In this case, the new period of 15 days eradicates the confusion as to when the 15-day appeal period should be counted — from receipt of notice of judgment... or from receipt of notice of “final order” appealed from. . .

To recapitulate, a party litigant may either file his notice of appeal within 15 days from receipt of the Regional Trial Court’s decision or file it within 15 days from receipt of the order (the “final order”) denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3” (Neypes v. Court of Appeals, supra).

4. It is clear from Neypes that the ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the 15-day period for appeal shall run from notice of the judgment.

5. Taking its cue from the earlier case of Neypes, the Court in one case set aside the denial of a notice of appeal which was purportedly filed five days late. With the fresh- period rule, the 15-day period within which to file the notice of appeal was counted from the notice of denial of the motion for reconsideration (Sumaway v. Urban Bank, Inc., 493 SCRA 99, 105-106).

6. The Neypes rule found application in subsequent cases where the Court ruled:

“In Neypes v. Court of Appeals, we standardized the appeal period provided in the Rules of Court. In Neypes, we granted a “fresh period” of 15 days within which to file the notice of appeal, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration or any final order or resolution” (Elbina v. Ceniza, 498 SCRA 438, 443; See also First Aqua Traders, Inc. v.


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compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more.

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

xxx This pronouncement is not inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The use of the disjunctive word “or” signifies disassociation and independence of one thing from another. It should, as a rule, be construed in the sense in which it ordinarily implies. Hence, the use of “or” in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the “final order, xxx denying the motion for a new trial or reconsideration.

Neither does this new rule run counter to the spirit of Section 39 of BP 129 which shortened the appeal period from 30 days to 15 days to hasten the disposition of cases. The original period of appeal xxx remains and the requirement for strict compliance still applies. The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration. In this manner, the trial court which rendered the assailed decision is given another opportunity to re-


are not original actions but mere continuances of the former suit. Thus, the owner of a judgment may use such judgment as a cause of action and bring suit thereon in the same court or any court of competent jurisdiction, and prosecute such suit to final judgment (Aldeguer v. Gemelo, 68 Phil. 421 citing Gould v. Hayden, 63 Ind., 443; Palmer v. Glover, 73 Ind., 529; Campbel v. Martin, 87 Ind., 577 and Becknell v. Becknell, 110 Ind., 47; Compania General de Tabacos v. Martinez and Nolan, 29 Phil. 515).

Where, however, the action filed is to revive a judgment in a labor case, regular courts are bereft of jurisdiction to entertain disputes involving employer-employee relationships. Thus, in Maricalum Mining Corporation v. NLRC, 298 SCRA 378, 387, the Court sustained the propriety of the institution of the action for revival of a judgment in the NLRC.

Venue of an action to revive a judgment What is the proper venue of an action for revival of judgments?

This question was answered in the case of Infante v. Aran Builders, Inc., 531 SCRA 123,129-130.

The court explained, thus:

“. . .the proper venue depends on the determination of whether the present action for revival of judgment is a real action or a personal action... if the action for revival of judgment affects title to or possession of real property, or interest therein, then it is a real action that must be filed with the court of the place where the real property is located. If such action does not fall under the category of real actions, it is then a personal action that may be filed with the court of the place where the plaintiff or defendant resides. . .”

When the five-year period is interrupted (Bar 1993) 1. While the rule is that the execution of a judgment can no

longer be effected by mere motion after five (5) years from the date of entry of the judgment, the Court in certain instances, allowed execution of the judgment by mere motion


despite the lapse of the five-year time line. In many instances, the delays in the execution of the judgment were through causes clearly attributable to the judgment debtor as when he employs legal maneuvers to block the enforcement of the judgment (See Camacho v. Court of Appeals, 287 SCRA 611; Republic v. Court of Appeals, 260 SCRA 344, 349-350). Delays attributable to the defendant have the effect of suspending the running of the prescriptive period for the enforcement of the judgment (Camacho v. Court of Appeals, 287 SCRA 611; Republic v. Court of Appeals, 260 SCRA 344, 349-350).

2. There are instances where the Court allowed execution by motion even after the lapse of five years upon meritorious grounds. These exceptions have one common denominator, and that is, the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit or advantage (Republic v. Court of Appeals, 260 SCRA 344, 349- 350).

It has been held that in computing the time limit for enforcing a final judgment, the general rule is that the time when execution is stayed, either by agreement of the parties for a definite time, by injunction, or by the taking of an appeal or writ of error shall not be included. Thus, the time during which execution is stayed should be excluded, and the said time will be extended by any delay occasioned by the debtor as when the writ of execution cannot be enforced within the five-year period because the debtor filed petitions in the Court of Appeals and in the Supreme Court challenging the trial court’s judgment as well as the writ of execution. Such petitions suspended or interrupted the further enforcement of the writ (Yau v. Silverio, and Macapagal v. Gako, 543 SCRA 520-529).

3. The period may also be interrupted by the agreement of the parties to suspend the enforcement of the judgment (Macias v. Lim, 431 SCRA 20, 40).

When the five and ten-year periods do not apply The periods do not apply to (a) special proceedings, such as

land registration and cadastral cases, wherein the right to ask


for a writ of possession does not prescribe (Rodil v. Benedicto, 95 SCRA 137,144-145); (b) judgments for support which do not become dormant and which can always be executed by motion despite lapse of the five-year period because the obligation is a continuing one and the court never loses jurisdiction to enforce the same (Canonizado v. Benitez, 127 SCRA 610, 616).

Stay of execution of a judgment; exceptions 1. As a rule, an appeal perfected in due time stays the

execution of a judgment. There are however, judgments, the execution of which is not stayed by a pending appeal. These judgments may be classified into two general categories, namely:

(a) Those judgments which by express provision of the rules are immediately executory and are not stayed by an appeal (Sec. 4, Rule 39, Rules of Court); and

(b) Those judgments that have become the object of dis-cretionary execution (Sec. 2, Rule 39, Rules of Court).

Judgments not stayed by appeal 1. The following judgments by express provision of the Rules

are immediately executory, enforceable upon their rendition and shall not be stayed by an appeal taken therefrom:

(a) judgment for injunction; (b) judgment for receivership; (c) judgment for accounting; and (d) judgment for support (Sec. 4, Rule 39, Rules of Court). 2. The rule, however, that the above judgments are

immediately executory and not stayed by an appeal, is not absolute because the court is authorized to order otherwise. Also on appeal therefrom, the appellate court in its discretion may make an order, suspending, modifying, restoring or granting the injunction, receivership, accounting or award of support (Sec. 4, Rule 39, Rules of Court).


The stay of the execution of the above judgments, if ordered by the trial court, shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party (Sec. 4, Rule 39, Rules of Court).

3. Under Rule 70, a judgment rendered against the defendant in an action for forcible entry and unlawful detainer is likewise immediately executory upon motion (Sec. 19, Rule 70, Rules of Court).

4. Even if the above judgment is immediately executory, there must be a motion to that effect and a hearing called for that purpose. In an ejectment case, the adverse party is entitled to notice before execution (Lou v. Siapno, 335 SCRA 181).

Discretionary execution (Bar 1991; 1995) 1. The concept of discretionary execution constitutes an

exception to the general rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. Under Sec. 1 of Rule 39, execution shall issue only as matter of right upon a judgment or final order that finally disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

2. A discretionary execution is called “discretionary” precisely because it is not a matter of right. The execution of a judgment under this concept is addressed to the discretionary power of the court. Unlike judgments that are final and executory, a judgment subject to discretionary execution cannot be insisted upon but simply prayed and hoped for because a discretionary execution is not a matter of right.

Jurisprudence considers this kind of execution not a matter of right, but of judicial discretion provided good reasons therefor exist and the compelling grounds for the issuance of the writ must be stated in a special order after due hearing (Bangkok Bank Public Company Limited v. Lee, 479 SCRA 267, 273-274).

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3. Be it noted that discretionary execution does not require a final and executory judgment but simply a “final” judgment or order (Intramuros Club, Inc. v. Court of Appeals, 341 SCRA 90, 105).

Requisites for discretionary execution Under Sec. 2 of Rule 39, for the trial court to allow an execution

even before the expiration of the period for appeal or pending appeal, there must be compliance of the following requisites:

(a) there must be a motion filed by the prevailing party with notice to the adverse party;

(b) there must be a hearing of the motion for discretionary execution;

(c) the motion must be filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal;

(d) there must be good reasons to justify the discretionary execution; and

(e) the good reasons must be stated in a special order (Sec. 2, Rule 39, Rules of Court; Mancenido v. Court of Appeals, 330 SCRA 419,427; Bangkok Bank Public Company Limited v. Lee, G.R. No. 159806, January 20, 2006; Geolistics-Inc. v. Catewey Electronics, 582 SCRA 434, 445).

Discretionary execution is to be strictly construed 1. A discretionary execution like an execution pending appeal

must be strictly construed because it is an exception to the general rule. It is not meant to be availed of routinely because it applies only in extraordinary circumstances (Corona International, Inc. v. Court of Appeals, 343 SCRA 512, 519). It should be interpreted only insofar as the language thereof fairly warrants, and all doubts should be resolved in favor of the general rule (Planters Products, Inc. v. Court of Appeals, 317 SCRA 195, 204).


2. Where the execution is not in conformity with the rules, the execution is null and void (Bangkok Bank Public Company Limited v. Lee, supra).

Good reasons 1. The existence of good reasons as justifications for

discretionary execution is essential. The good reasons are what confer discretionary power upon the court to issue a writ of execution pending appeal (Intramuros Tennis Club, Inc. v. Court of Appeals, 341 SCRA 90, 107).

2. Certiorari will lie against an order granting execution pending appeal where the same is not founded upon good reasons (International School, Inc. Manila v. Court of Appeals, 309 SCRA 474, 482).

3. Sec. 2 of Rule 39 does not cite examples of the good reasons that would justify a discretionary execution. What constitutes a good reason therefore, is left to the sound exercise of judicial discretion. The following, among others, have been given by jurisprudence as good reasons:

(a) The insolvency of the debtors may justify discretionary execution as when it is proven that they had been exhausting for their personal use all the monthly installments being received by them from the sales of the different lots of the subdivision in question, they have not constructed therein the improvements required by law like the construction of roads, gutters and that they do not appear to have any other properties or assets to answer not only for the aforementioned obligations but more particularly the obligations imposed upon them by the decision (Lao v. Mencias, 21 SCRA 1021, 1024).

(b) The purpose of preventing irreparable injury to the consumers of an electric cooperative which needs the amount of the judgment for its operations and the repair of its transmission lines, electric posts, transformers, accessories, towers, and fixtures within its coverage area (Fortune Guarantee and


Insurance Corporation v. Court of Appeals, 379 SCRA 7, 19-20).

(c) The fact that the goods subject of the judgment will perish or deteriorate during the pendency of the appeal, a fact which would render the judgment in favor of the prevailing party ineffective (Federation of United NAMARCO Distributors, Inc. v. Court of Appeals, 4 SCRA 867, 888; Intramuros Tennis Club, Inc. v. Philippine Tourism Authority, 341 SCRA 90, 107 citing Yasuda v. Court of Appeals, 330 SCRA 385, Bell Carpets International Trading Corporation v. Court of Appeals, 185 SCRA 35).

(d) The failure in an unlawful detainer case to make the required periodic deposits to cover the amount of rentals due under the contract or for payment of the reasonable value of the use and occupation of the premises, or the failure to post a supersedeas bond may be good reasons to allow execution pending appeal (Sec. 19, Rule 70, Rules of Court).

4. In Florendo v. Paramount Insurance Corp., 610 SCRA 377, G.R. No. 167976, January 20, 2010, the Supreme Court held:

“ x x x “Good reasons,” it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity.

5. Good reasons consist of compelling circumstances justifying immediate execution lest judgment becomes illusory, or the prevailing party after the lapse of time be unable to enjoy it, considering the tactics of the adverse party who may have apparently no case but to delay. There must be superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal


of the judgment. Were it otherwise, execution pending appeal may well become a tool of oppression and inequity instead of an instrument of solicitude and justice (Intramuros Club, Inc. v. Philippine Tourism Authority, 341 SCRA 90, 107).

6. “Good reason” as required by Sec. 2, Rule 39 of the Rules of Court does not necessarily mean unassailable and flawless basis but at the very least, it must be on solid footing. Dire financial conditions of the plaintiffs supported by mere self-serving statements as “good reason” for the issuance of a writ of execution pending appeal does not stand on solid footing. It does not even stand on its own (National Power Corporation v. Adiong, A.M. No. RTJ-07-2060, July 27, 2011).

Frivolous appeal as reason for discretionary execution 1. Where the sole reason given by the trial court in allowing

execution is that the appeal is frivolous and dilatory, execution pending appeal cannot be justified because the authority to disapprove an appeal pertains to the appellate court (International School, Inc. Manila v. Court of Appeals, 309 SCRA 474, 483). Mere allegation that the appeal is dilatory is not a good reason to merit discretionary execution (Intramuros Tennis Club, Inc. v. Philippine Tourism, 341 SCRA 90,107).

2. The rule has been subsequently reiterated in one case. The Court stressed that the trial court is not justified to order execution pending appeal, on its assertion that the appeal of the respondent is a dilatory tactic. It is not for the trial judge to determine the merit of a decision he rendered as this is the role of the appellate court. Hence, it is not within the competence of the trial court, in resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as basis for finding good reasons to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal (Sangkay v. National Power Corporation, 489 SCRA 401, 422).

3. Although ascertainment of the special reasons for execution pending appeal lies within the sound discretion of


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the trial court, and the appellate Court should not normally disturb such finding, intervention by the appellate court may be proper, if it is shown that there has been an abuse of discretion. That the appeal was merely dilatory because the assailed letter of instruction is unconstitutional, does not constitute “good reason” to justify execution pending appeal. Well-settled is the rule that it is not for the trial court to determine the merit of a decision it rendered as this is the role of the appellate Court. Hence, it is not within the competence of the trial court, in resolving the motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as the basis for finding good reason to grant the motion (Planters Products, Inc. v. Court of Appeals, 317 SCRA 195, 203).

Posting of bond as reason for discretionary execution (Bar 1991) 1. The rule is now settled that the mere filing of a bond by

the successful party is not in itself a good reason for ordering execution pending appeal, because it is the combination of circumstances which is the dominating reason that would justify immediate execution, the bond being only an additional factor (International School of Manila v. Court of Appeals, 309 SCRA 474, 485; Intramuros Tennis Club, Inc. v. Philippine Tourism Authority, 341 SCRA 90, 107).

2. If the mere posting of a bond is sufficient to justify immediate execution pending appeal, judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed was to post a bond. Immediate execution will then become the general rule rather than the exception.

Roxas v. Court of Appeals, 157 SCRA 370, 377-378 elucidates:

“Good reasons, special, important, pressing reasons must exist to justify it; otherwise, instead of an instrument of solicitude and justice, it may well become a tool of oppression and inequity. But to consider the mere posting of a bond a “good reason” would precisely make imme


diate execution of a judgment pending appeal routinary, the rule rather than the exception. Judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond to answer for damages that might result therefrom. This is a situation, to repeat, neither contemplated nor intended by law.”

Another case likewise rules:

We cannot, however, sanction the execution pending appeal which was authorized in this case. The order for advance execution must be struck down for lack of the requisite good reasons therefor. It is already settled that the mere filing of a bond does not warrant execution pending appeal. To consider the mere filing of a bond a good reason would precisely make immediate execution of a judgment pending appeal routinary, the rule rather than the exception (Stronghold Insurance Co., Inc. v. Court of Appeals, 179 SCRA 117, 127; Underscoring supplied).

Financial distress as reason for discretionary execution The fact that the prevailing party is in financial distress is also

not in itself a good reason to justify execution pending appeal (Intramuros Tennis Club, Inc. v. Court of Appeals, supra).

Where to file an application for discretionary execution The motion for discretionary execution shall be filed with the

trial court while (a) it has jurisdiction over the case and while (b) it is in possession of either the original record or the record on appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court (Sec. 2, Rule 39, Rules of Court; Bangkok Republic Company Limited v. Lee, G.R. No. 159806, January 20, 2006).

Remedy where the judgment subject to discretionary execution is reversed or annulled

Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may,


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on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39, Rules of Court). There is no need of specifying in the judgment that there should be restitution because restitution is expressly provided for in the Rules. Said rule should apply in the absence of a disposition to the contrary in the judgment of the appellate court (See the related case of Salas v. Quinga, 13 SCRA 143,145-146).

Execution in case the judgment obligee dies The death of the judgment obligee will not prevent the

execution of the judgment. In case the judgment obligee dies, execution may issue upon the application of his executor, administrator or successor in interest (Sec. 7[a] Rule 39, Rules of Court).

Execution in case the judgment obligor dies The death of the judgment obligor will not likewise prevent

execution of the judgment. In case the judgment obligor dies, execution shall still go on because under the Rules, execution shall issue against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon (Sec. 7[b], Rule 39, Rules of Court). If the death occurs after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation. If there be any surplus after the sale, the officer making the sale shall account to the corresponding executor or administrator (Sec. 7[c], Rule 39, Rules of Court).

How to execute judgments for money; summary 1. In executing a judgment for money, the sheriff shall follow

the following steps: (a) Demand from the judgment obligor the immediate

payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of


payment acceptable to him (Sec. 9[a], Rule 39, Rules of Court).

(b) If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees (Sec. 9[b], Rule 39, Rules of Court; Bar 2010).

(c) The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. The process of effecting this form of levy is called garnishment.

2. Based on the foregoing rules, the sheriff is required first to demand from the judgment obligor the immediate payment of the full amount stated in the writ of execution before a levy can be made. The sheriff shall demand such payment either in cash, certified bank check or any other mode of payment that is acceptable to the judgment obligee. If the judgment obligor cannot pay by these methods immediately or at once, he can exercise his option to choose which among his personal properties can be levied upon. If he does not exercise this option, he waives such right and the sheriff can now first levy his personal properties, if any, and then the real properties if the personal properties are insufficient to satisfy the judgment (Villarin v. Munasque, 568 SCRA 483, 497).

It is evident from the current rules that the levy by the sheriff may be done only if the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or through


other modes acceptable to the prevailing party. If payment can be done, a levy is unnecessary. On the other hand, if the judgment obligor makes a prior admission that he cannot pay the amount stated in the writ of execution and that he agrees to the levy of his properties so long as the auction sale would not be set earlier than a certain set by the judgment obligor, such admission provides a reasonable basis for the sheriff to forego a prior demand to pay and to levy on the properties right away (Villarin v. Munasque, supra at 499).

3. The rule that it is not proper for a sheriff to immediately levy upon the property of the judgment debtor was recently affirmed. In Leachon v. Pascua, A.M. No. P-ll- 2972, September 28, 2011, it was ruled that the levy upon the properties of the judgment obligor may be had by the executing sheriff only if the judgment obligor cannot pay all or part of the full amount stated in the writ of execution. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check, or other mode acceptable to the judgment obligee, the judgment obligor is given the option to immediately choose which of his property or part thereof, not otherwise exempt from execution, may be levied upon sufficient to satisfy the judgment. If the judgment obligor does not exercise the option immediately, or when he is absent or cannot be located, he waives such right, and the sheriff can now first levy his personal properties, if any, and then the real properties if the personal properties are insufficient to answer for the judgment. Therefore, the sheriff cannot and should not be the one to determine which property to levy if the judgment obligor cannot immediately pay because it is the judgment obligor who is given the option to choose which property or part thereof may be levied upon to satisfy the judgment (Leachon v. Pascua, A.M. No. P-11-2972, September 28, 2011).

Money judgments are enforceable only against property of judgment debtor

“It is a basic principle of law that money judgments are enforceable only against property unquestionably belonging


to the judgment debtor. In the execution of a money judgment, the sheriff must first make a demand on the obligor for payment of the full amount stated in the writ of execution. Property belonging to third persons cannot be levied upon. Moreover, the levy upon the properties of the judgment obligor may be had by the executing sheriff if the judgment obligor cannot pay all or part of the full amount stated in the writ of execution. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode acceptable to the judgment obligee, the judgment obligor is given the option to immediately choose which of his property or part thereof, not otherwise exempt from execution, may be levied upon sufficient to satisfy the judgment. If the judgment obligor does not exercise the option immediately, or when he is absent or cannot be located, he waives such right, and the sheriff can now first levy his personal properties, if any, and then the real properties if the personal properties are insufficient to answer for the judgment.

Therefore, the sheriff cannot and should not be the one to determine which property to levy if the judgment obligor cannot immediately pay because it is the judgment obligor who is given the option to choose which property or part thereof may be levied upon to satisfy the judgment.” In a case where the judgment obligor is not the owner of the subject vehicle that the sheriff levied on, it was improper for him to have enforced the writ of execution on a property that did not belong to the judgment debtor/obligor. Respondent sheriff evidently failed to perform his duty with utmost diligence (Sarmiento v. Mendiola, 638 SCRA, 345, 350, December 15, 2010).

Garnishment of debts and credits Garnishment shall be made by (a) serving notice upon the third

person having in possession or control of the credits in favor of the judgment obligor; (b) the third person or garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds to satisfy the judgment. If sufficient, the garnishee shall deliver the amount


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in cash or certified check shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishee. The lawful fees shall be directly paid to the court. If the amount is insufficient, the garnishee shall make a report as to the amount he holds for the judgment obligor (Sec. 9, Rule 39, Rules of Court).

Levy of encumbered property “In determining properties to be levied upon, the Rules require

the sheriff to levy only on those “properties of the judgment debtor” which are “not otherwise exempt from execution.” For purposes of the levy, a property is deemed to belong to the judgment debtor if he holds a beneficial interest in such property that he can sell or otherwise dispose of for value. In a contract of mortgage, the debtor retains beneficial interest over the property notwithstanding the encumbrance, since the mortgage only serves to secure the fulfillment of the principal obligation. Indeed, even if the debtor defaults, this fact does not operate to vest in the creditor the ownership of the property; the creditor must still resort to foreclosure proceedings. Thus, a mortgaged property may still be levied upon by the sheriff to satisfy the judgment debtor’s obligations x x x” (Golden Sun Finance Corporation v. Albano, A.M. No. P-l1-2888, July 27, 2011).

In Golden Sun Finance Corporation, the Court explained that the encumbrance will not affect the right of the judgment debtor over the property or exempt the property from the levy if made prior to foreclosure of any mortgage constituted on the property. Even the pendency of a proceeding for replevin would not serve to prevent the sheriff from levying on the property since the fact of default and the right to foreclose had to be settled in the proceeding (Golden Sun Finance Corporation v. Albano, A.M. No. P-ll-2888, July 27, 2011).

Effect of levy and sale of property It is settled that execution is enforced by the fact of levy and

sale. The result of such execution was that title over the subject property is vested immediately in the purchaser


subject only to the right to redeem the property within the period provided for by law. The right acquired by the purchaser at an execution sale is inchoate and does not become absolute until after the expiration of the redemption period without the right of redemption having been exercised. But inchoate though it be, it is, like any other right, entitled to protection and must be respected until extinguished by redemption. If there is a failure to redeem the subject property within the period allowed by law, the redemptioner is divested of his rights over the property (Ching v. Family Savings Bank, 634 SCRA 586, 601, November 15, 2010).

Execution of a judgment for the performance of a specific act 1. If the judgment requires a person to perform a specific

act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party (Sec. 10[a], Rule 39, Rules of Court).

2. If the judgment directs a conveyance of real or personal property, and said property is in the Philippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law (Sec. 10[a], Rule 39, Rules of Court).

Execution for a judgment for the delivery or restitution of real property (Bar 1995)

1. An example of this kind of judgment is one rendered in an action for ejectment. In such a case, the officer shall demand from the judgment obligor to vacate peaceably within three (3) working days, and restore possession of the property to the judgment obligee (Sec. 10[c], Rule 39, Rules of Court).

The enforcement of the writ of execution in ejectment cases is carried out by giving the defendant notice of such writ, and making a demand that defendant comply therewith


within a reasonable period, normally from three (3) to five (5) days, and it is only after such period that the sheriff is to enforce the writ by the bodily removal of the defendant and his belongings. Note that in both the Rules and jurisprudence, the writ of execution in ejectment cases cannot be enforced on the same date the sheriff receives the writ. The three (3)-day notice is required. In one case, there was no notice given. Respondents only learned of the issuance of the writ of execution at the time it was being enforced by petitioner (Manuel v. Escalante, G.R. No. 134141, August 13,2002).

2. Immediacy of execution does not mean instant execution. When a decision is immediately executory it does not mean dispensing with the required three (3)-day notice. A sheriff who enforces the writ without the required notice is running afoul with the rules (Mendoza v. Doroni, 481 SCRA 41,52-53; Calaunan v. Madolaria, 642 SCRA 1, 9, February 8, 2011).

The requirement of a notice to vacate is based on the rudiments of justice and fair play. The rule requires that notice be served on the “person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him” (Calaunan v. Madolaria, 642 SCRA 1, 9, February 8, 2011).

3. After the lapse of the period given and the judgment obligor refuses to vacate, then the sheriff may enforce the writ by ousting the judgment obligor and all the persons claiming a right under him, with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession and place the judgment obligee in possession of such property (Sec. 10[c], Rule 39, Rules of Court). This provision authorizes the bodily removal of the defendant and his belongings (Mendoza v. Doroni, supra).

Contempt is not a remedy

The mere refusal or unwillingness of the judgment debtor to vacate the property is not a sufficient ground to


hold him in contempt. The writ of possession was not directed to the judgment debtor but to the sheriff who was directed to deliver the property to the prevailing party. As the writ did not command the judgment debtor to do anything, he cannot be guilty of the acts described in Rule 71 which is “disobedience of or resistance to a lawful writ, process, order, judgment or command of any court.” The proper procedure is not for the court to cite the debtor in contempt. What the officer should do is to dispossess him of the property and if after the dispossession, the judgment debtor should execute acts of ownership or possession or in any manner disturb the possession of the judgment creditor, then and only then may he be punished for contempt (Pascua v. Heirs ofSegundo Simeon, 161 SCRA 1, 5; Barrete v. Amila, 230 SCRA 219,222- 223).

Removal of improvements on the property subject of execution When the property subject of execution contains improvements

constructed or planted thereon by the judgment obligor or his agent, the officer shall not demolish, destroy or remove them. These acts may only be done by the officer upon a special order by the court which will be issued upon motion by the judgment obligee and after hearing and only after the judgment obligor fails to remove them within a reasonable time fixed by the court (Sec. 10[d], Rule 39, Rules of Court).

Property exempt from execution (Bar 1981) 1. There are certain properties exempt from execution

enumerated under Sec. 13 of Rule 39, to wit: (a) The judgment obligor’s family home as provided by law, or

the homestead in which he resides, and the land necessarily used in connection therewith;

(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor


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may select necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos (Bar 1981);

(f) Provisions for individual or family use sufficient for four months;

(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family;

(j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any

manner growing out of any life insurance; (1) The right to receive legal support, or money or property

obtained as such support, or any pension or gratuity from the government; and

(m) Properties specially exempted by law (Sec. 13, Rule 39, Rules of Court).

2. The rule provides that no other property is exempt from execution, except as otherwise provided by law (Sec. 13, Rules of Court). The enumeration therefore, is exclusive.


When the property mentioned is not exempt from execution If the property mentioned in Sec. 13 of Rule 39 is the subject of

execution because of a judgment for the recovery of the price or upon a judgment of foreclosure of a mortgage upon the property, the property is not exempt from execution (Sec. 13, Rule 39, Rules of Court).

Proceedings when property levied upon is claimed by third persons; terceria (Bar 1982; 1984; 1993; 2011)

1. A person, not a party to the action, claiming a property levied upon may execute an affidavit of his title or right of possession over the property. Such affidavit must state the grounds of such right or title. The affidavit shall be served upon the officer making a levy and a copy thereof must also be served upon the judgment obligee (Sec. 16, Rule 39, Rules of Court). This remedy of the claiming party is also called “terceria.”

The officer served with the affidavit of the claiming third person shall not be bound to keep the property subject of the claim, unless the judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the claimant in a sum not less than the value of the property levied upon. 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 ("Sec. 16, Rule 39, Rules of Court). The officer shall not be liable to any third-party claimant for damages for the taking or keeping of the property, if such bond is filed (Sec. 16, Rule 39, Rules of Court).

2. Said the Supreme Court in Ching v. Court of Appeals, 423 SCRA 356, 368-369:

“. . . the sheriff may attach only those properties of the defendant against whom a writ of attachment has been issued by the court. When the sheriff erroneously levies on attachment and seizes the property of a third person in which the said defendant holds no right or interest, the superior authority of the court which has au


677

thorized the execution may be invoked by the aggrieved third person in the same case. Upon application of the third person, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment, more specifically if he has indeed levied on attachment and taken hold of property not belonging to the plaintiff. If so, the court may then order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the motion of the third party, the court does not and cannot pass upon the question of the title to the property with any character of finality. It can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not. If the claimant’s proof does not persuade the court of the validity of the title, or right of possession thereto, the claim will be denied by the court. The aggrieved third party may also avail himself of the remedy of “terceria” by executing an affidavit of his title or right of possession over the property levied on at-tachment and serving the same to the office making the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting from the unlawful levy and seizure, which should be a totally separate and distinct action from the former case. The abovementioned remedies are cumulative and any one of them may be resorted to by one third-party claimant without availing of the other remedies.” (Underscoring supplied).

3. Other remedies may also be availed of by the third- party claimant because nothing contained in the Rules “shall prevent the claiming third person from vindicating his claim to the property in a separate action...” (Sec. 16, Rule 39, Rules of Court; Bar 1982,1983; 1984; 1993; Bar 2011).

One case holds:

“The second paragraph of Section 16, Rule 39 of the Rules of Court provides:

xxx Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judg-


ment obligee from claiming damages in the same or separate action against a third-party claimant who filed a frivolous or plainly spurious claim.

Clearly, a third-party claimant or any third person may vindicate his claim to his property wrongfully levied by filing a proper action which is distinct and separate from that in which the judgment is being enforced. Such action would have for its object the recovery of the possession of the property seized by the sheriff, as well as damages resulting from the allegedly wrongful seizure and detention thereof despite the third-party claim; and it may be brought against the sheriff, of course, and such other parties as may be alleged to have colluded with the sheriff in the supposedly wrongful execution proceedings, such as the judgment creditor himself.

The same paragraph also provides a remedy to a judgment obligee when a frivolous and plainly spurious claim was filed by a third-party claimant, i.e., to file his claim for damages in the same court where the third-party claimant filed his third-party claim or to file a separate action. Thus, petitioners’ claim for damages must be filed in the trial court, whether in the same case where a third- party claim has been filed or in a separate action for damages which petitioners may institute. This is so in order to require the filing of proper pleadings and to hold trial so as to give the parties the chance to submit their respective evidence” (Capa v. Court of Appeals, 502 SCRA 406, 417-418; Underscoring supplied).

A more recent case (Imani v. Metropolitan Bank & Trust Company, 635 SCRA 357, 365, November 17, 2010), clearly explains, thus:

“Under [Section 16, Rule 39], a third-party claimant or a stranger to the foreclosure suit, can opt to file a remedy known as terceria against the sheriff or officer effecting the writ by serving on him an affidavit of his title and a copy thereof upon the judgment creditor. By the terceria, the officer shall not be bound to keep the property and could be answerable for damages. A third-party claimant may also resort to an independent “separate action,” the object of which is the recovery of ownership or pos


session of the property seized by the sheriff, as well as damages arising from wrongful seizure and detention of the property despite the third-party claim. If a “separate action” is the recourse, the third-party claimant must institute in a forum of competent jurisdiction an action, distinct and separate from the action in which the judgment is being enforced, even before or without need of filing a claim in the court that issued the writ. Both remedies are cumulative and may be availed of independently of or separately from the other. Availment of the terceria is not a condition sine qua non to the institution of a “separate action.”

Miscellaneous principles to be remembered in execution sales 1. A notice of sale is required before the property levied

upon is sold on execution (Sec. 15, Rule 39, Rules of Court). All sales of property under execution must be made at public auction to the highest bidder (Sec. 19, Rule 39, Rules of Court) but the execution sale must be preceded by a valid levy which is indispensable for a valid execution sale (Tan v. Court of Appeals, 162 SCRA 237, 244).

A levy is the act whereby the sheriff sets apart or appropriates a part of the whole of the properties of the judgment obligor to satisfy the command of the writ (Fiestan v. Court of Appeals, 185 SCRA 751, 757).

A levy is necessary only if the obligor cannot satisfy the judgment in cash, certified check or any other mode of payment acceptable to the judgment creditor (Sec. 9[b], Rule 39, Rules of Court).

A levy upon real property is made by the officer by performing two specific acts: (a) filing with the Register of Deeds a copy of the order, description of the attached property and notice of attachment; and (b) leaving with the occupant of the property copy of the same order, description and notice. Non-compliance with any of these requisites is fatal because a special statutory provision respecting the manner of carrying out levy of attachment must be strictly complied


with and departure therefrom shall invalidate the levy (Delta Motors Corporation v. Court of Appeals, 168 SCRA 206, 212; Philippine Surety and Insurance Co. v. Zabal, 21 SCRA 682, 685).

2. After sufficient property has been sold to satisfy the execution, no more shall be sold (Sec. 19, Rule 39, Rules of Court);

3. Any excess property or proceeds of the sale shall be delivered to the judgment obligor (Sec. 19, Rule 39, Rules of Court);

4. If the purchaser at the auction refuses to pay the amount bid by him, the officer may again sell the property to the highest bidder and the court may require such purchaser to pay unto the court the amount of whatever loss, with costs occasioned by his refusal to pay and if he disobeys the order, may punish him for contempt. Any subsequent bid by such purchaser may be refused by the officer conducting the bidding (Sec. 20, Rule 39, Rules of Court);

5. The judgment obligee may bid and if said party is the purchaser and there is no third party claim, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall only pay the excess (Sec. 21, Rule 39, Rules of Court);

6. If the purchaser of personal property capable of manual delivery pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, shall execute a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment (Sec. 23, Rule 39, Rules of Court);

7. When the purchaser of any personal property not capable of manual delivery pays the price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment (Sec. 24, Rule 39, Rules of Court).


Sale and redemption of real property (Bar 2009) 1. Upon a sale of real property, the officer must give to the

purchaser a certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated (Sec. 25, Rule 39, Rules of Court).

2. The real property sold may be redeemed from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale. If there are other creditors having a lien on the property, the property so redeemed may again be redeemed within sixty (60) days from the last redemption. The property may again, and as often as a redemptioner is so disposed, be redeemed from any previous redemptioner within sixty (60) days after the last redemption (Sec. 28, Rule 39, Rules of Court).

3. The property may be redeemed by the judgment obligor, or his successor in interest or by a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent to the lien under which the property was sold. Such redeeming creditor is called a redemptioner (Sec. 27, Rule 39, Rules of Court).

4. Note that the right of redemption under referred to above has reference only to real, not personal property (Sec. 27, Rule 39, Rules of Court).

Effect if no redemption is made 1. If no redemption is made within one (1) y ear from the date

of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, the last redemptioner is entitled to the conveyance and possession of the property (Sec. 33, Rule 39, Rules of Court).

2. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy (Sec. 33, Rule 39, Rules of Court).


Rents, income and earnings of the property pending the re-demption

The purchaser or redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption (Sec. 32, Rule 39, Rules of Court).

Remedy when the judgment is unsatisfied (Bar 1983; 2002; 2008) 1. When the return of the writ of execution shows that the

judgment is unsatisfied, the judgment obligee is entitled to an order from the court which rendered the judgment, requiring the judgment obligor to appear and be examined concerning his property and income before the court or a commissioner appointed by the court. This remedy has a limitation because the judgment obligor cannot be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (Sec. 36, Rule 39, Rules of Court). Thus, if the court is RTC Bulacan and the obligor is a resident of Quezon City, he cannot be required to appear and be examined.

2. It is not only the judgment debtor who may be examined. A person, corporation, or other juridical entity, indebted to the judgment debtor may be required to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same (Sec. 37, Rule 39, Rules of Court).

Effect of final judgments

1. When a court of the Philippines has rendered judgment with jurisdiction, the following are the effects of its judgment or final order:


683

(a) If the judgment or final order is on a specific thing, the same is conclusive upon the title to thing (Sec. 47, Rule 39, Rules of Court).

(b) If the judgment or final order is in respect to the probate of a will, or the administration of the estate of a deceased person, the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death (Sec. 47, Rule 39, Rules of Court).

(c) If the judgment or final order is in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the condition, status or relationship of the person (Sec. 47, Rule 39, Rules of Court).

(d) In other cases, if the judgment be with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, the judgment or final order is conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and the same capacity ("Sec. 47, Rule 39, Rules of Court).

(e) In any other litigation between the same parties or their successors in interest, that only is deemed to be adjudged in a former judgment or final order which appears upon its face to have been adjudged, or which was actually and necessarily included therein or necessary thereto (Sec. 47, Rule 39, Rules of Court).

2. Letter “d” above, declares that the judgment or decree of a court of competent jurisdiction concludes the litigation between the parties and their successors or privies and bars a new action or suit involving the same cause of action. This


is referred to as “bar by a prior judgment” which is a form of res judicata. Letter “e” lays down the rule that any right, fact, or matter in issue which has been directly adjudicated upon or is necessarily involved in the determination of the action by a competent court is conclusively settled by the judgment or final order and cannot be litigated upon again by the parties and their privies whether or not the claims or demands, purposes or subject matters of the two suits are the same. This rule is known as “conclusiveness of judgment,” another form of res judicata (See Calalang v. Register of Deeds of Quezon City, 231 SCRA 88; Spouses Layos v. Fil-Estate Golf and Development, Inc., 561 SCRA 75).

— oOo —

APPENDIX A Republic of the Philippines SUPREME COURT

Manila

EN BANC [A.M. No. 11-3-6-SC, March 15, 2011]

AMENDMENT OF SECTION 12, RULE 14 OF THE RULES OF COURT ON SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY

Section 12, Rule 14 of the Rules of Court is hereby amended to read as follows:

“SEC. 12. Service upon foreign private juridical entity. — When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means:

a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs;

b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the

685


court order by registered mail at the last known address of the defendant;

c) By facsimile or any recognized electronic means that could generate proof of service; or

d) By such other means as the court may in its discretion direct. This rule shall take effect fifteen (15) days after publication in a

newspaper of general circulation in the Philippines. March 15, 2011

Signed RENATO C. CORONA Chief Justice

Signed ANTONIO T. CARPIO Associate Justice

Signed CONCHITA CARPIO-MORALES Associate Justice

Signed PRESBITERIO J. VELASCO Associate Justice

(on leave) ANTONIO EDUARDO B. NACHURA

Associate Justice

Signed TERESITA J. LEONARDO-DE CASTRO Associate Justice

(on leave) ARTURO D. BRION

Associate Justice

Signed DIOSDADO M. PERALTA Associate Justice

Signed LUCAS P. BERSAMIN Associate Justice

Signed MARIANO C. DEL CASTILLO Associate Justice

Signed ROBERTO A. ABAD Associate Justice

Signed MARTIN S. VILLARAMA, JR. Signed JOSE PORTUGAL PEREZ Associate Justice Associate Justice

Signed JOSE CATRAL MENDOZA Signed MARIA LOURDES P. A. SERENO Associate Justice Associate Justice

APPENDIX B

Republic of the Philippines SUPREME COURT Manila

A.M. NO. 08-8-7-SC THE RULE OF PROCEDURE FOR SMALL CLAIMS CASES

R E S O L U T I O N Pursuant to the action of the Court en banc in its session held

on October 27, 2009, Sections 11,12,14,16, 21, and 22 of the Rule of Procedure for Small Claims Cases, including the attached Forms, are AMENDED to read as follows:

Section 11. Response. — The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a non-extendible period of ten (10) days from receipt of summons. The Response shall be accompanied by certified photocopies of documents, as well as affidavits of witnesses and other evidence in support thereof. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Response, unless good cause is shown for the admission of additional evidence.

THE GROUNDS FOR THE DISMISSAL OF THE CLAIM, UNDER RULE 16 OF THE RULES OF COURT, SHOULD BE PLEADED.

Section 12. Effect of Failure to File Response. — Should the defendant fail to file his Response within the

687


required period, AND LIKEWISE FAIL TO APPEAR AT THE DATE SET FOR HEARING, THE COURT SHALL RENDER JUDGMENT ON THE SAME DAY, AS MAY BE WARRANTED BY THE FACTS.

SHOULD THE DEFENDANT FAIL TO FILE RESPONSE WITHIN THE REQUIRED PERIOD BUT APPEARS AT THE DATE SET FOR HEARING, THE COURT SHALL ASCERTAIN WHAT DEFENSE HE HAS TO OFFER AND PROCEED TO HEAR, MEDIATE OR ADJUDICATE THE CASE ON THE SAME DAY AS IF A RESPONSE HAS BEEN FILED.

Section 14. Prohibited Pleadings and Motions. — The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule:

(a) MOTION TO DISMISS THE COMPLAINT; (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment,

or for reopening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings, affidavits, or

any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition against

any interlocutory order issued by the court; (h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

(j) Reply;

(k) Third-party complaints; and

(1) Interventions. Section 16. Appearance. — The parties shall appear at the

designated date of hearing personally.

APPENDIX B 689 THE RULE OF PROCEDURE FOR SMALL CLAIMS CASES

APPEARANCE THROUGH A REPRESENTATIVE MUST BE FOR A VALID CAUSE. THE REPRESENTATIVE OF AN INDIVIDUAL-PARTY MUST NOT BE A LAWYER, AND MUST BE RELATED TO OR NEXT-OF-KIN OF THE INDIVIDUAL-PARTY. JURIDICAL ENTITIES SHALL NOT BE REPRESENTED BY A LAWYER IN ANY CAPACITY.

THE REPRESENTATIVE MUST BE authorized under a Special Power of Attorney (Form 5-SCC) to enter into an amicable SETTLEMENT OF THE DISPUTE and to enter into stipulations or admissions of facts and of documentary exhibits.

Section 21. HEARING. — At the hearing, the judge shall EXERT EFFORTS TO BRING THE PARTIES TO AN AMICABLE SETTLEMENT OF THEIR DISPUTE. Any settlement (Form 7-SCC) or resolution (Form 8-SCC) of the dispute shall be reduced into writing, signed by the parties and submitted to the court for approval (Form 12-SCC).

SETTLEMENT DISCUSSIONS SHALL BE STRICTLY CONFIDENTIAL AND ANY REFERENCE TO ANY SETTLEMENT MADE IN THE COURSE OF SUCH DIS-CUSSIONS SHALL BE PUNISHABLE BY CONTEMPT.

Section 22. Failure of SETTLEMENT. - If EFFORTS AT SETTLEMENT FAIL, the hearing shall proceed in an informal and expeditious manner and BE terminated within one (1) day. EITHER PARTY MAY MOVE IN WRITING (FORM 10-SCC) TO HAVE ANOTHER JUDGE HEAR AND DECIDE THE CASE. THE REASSIGNMENT WITH EXISTING ISSUANCES.

THE REFERRAL BY THE ORIGINAL JUDGE TO THE EXECUTIVE JUGDE SHALL BE MADE WITHIN THE SAME DAY THE MOTION IS FILED AND GRANTED, AND BY THE EXECUTIVE JUDGE TO THE DESIGNATED JUDGE WITHIN THE SAME DAY OF THE REFERRAL. THE NEW JUDGE SHALL HEAR AND


DECIDE THE CASE WITHIN FIVE (5) WORKING DAYS FROM RECEIPT OF THE ORDER OF REASSIGNMENT.

The amendments of the Rule shall take effect on November 3, 2009 following its publication in two (2) newspapers of general circulation.

October 27, 2009

Signed REYNATO S. PUNO Chief Justice

Signed LEONARDO A. QUISUMBING Signed ANTONIO T. CARPIO Associate Justice

(on leave) RENATO C. CORONA

Associate Justice

Signed MINITA V. CfflCO-NAZARIO Associate Justice

(on leave) ANTONIO EDUARDO B. NACHURA

Associate Justice

Signed ARTURO D. BRION Associate Justice

LUCAS P. BE RSAMIN Associate Justice

Associate Justice (on leave)

CONCHITA CARPIO-MORALES Associate Justice

(on leave) PRESBITERO J. VELASCO, JR.

Associate Justice

(on leave) TERESITA J. LEONARDO-DE CASTRO

Associate Justice

Signed DIOSDADO M. PERALTA Associate Justice

(on leave) MARIANO C. DEL CASTILLO

Associate Justice

Signed ROBERTO A. ABAD Associate Justice

CASE INDEX

20 Am Jur §88 1965 ................................................................................................ 61 20 Am Jur 2d §119,1965 ........................................................................................ 86 20 Am Jur 2d §90,1965 ........................................................................................... 67 20 Am Jur 2d §93,1965 Ed..................................................................................... 64 20 Am Jur 2d, Courts, § 1,1965; 21 C.J.S., Courts, § 1 ..................................... 39 20 Am Jur 2d, Courts, § 55 .................................................................................... 35 21 C.J.S., § 4 ............................................................................................................. 35 21 C.J.S., Courts, § 28 ............................................................................................. 36 21 C.J.S., Courts, § 3 ............................................................................................... 36 21 C.J.S., Courts, § 4 ............................................................................................... 35 35A C.J.S. § 527, 1960 ......................................................................................... 458 35A C.J.S. §466,1960 .............................................................................................. 81 46 Am Jur 2d, Judgments Sec. 1 ....................................................................... 522 61 Am Jur, Pleading, § 57 ................................................................................... 261 61A Am Jur 2d § 1, 1981 ..................................................................................... 259 61A Am Jur 2d, § 2,1981 ..................................................................................... 259 61AAm Jur 2d, §3,1981 ....................................................................................... 260 61A Am Jur 2d, Pleadings, § 1 .............................................................................. 92 71 C.J.S., Pleading, §53 ....................................................................................... 260 ABC Davao Auto Supply, Inc. v. Court of Appeals,

284 SCRA 218, 222 ................................................................................. 40, 62 Aboitiz International Forwarders, Inc. v. Court of Appeals,

488 SCRA 492, 507-509 ............................................................................... 384 Abrenica v. Abrenica, Tungol and Tibayan,

502 SCRA 614, 622 .......................................................................................... 18 Abrenica v. Law Firm of Abrenica, Tungol and Tibayan,

502 SCRA 614, 622 citing Sebastian v. Morales, 397 SCRA 549................................................................................................... 15

Acabal v. Acabal, 454 SCRA 555, 569 ............................................................... 316 Ace Publications v. Commissioner of Customs,

11 SCRA 147,153 ............................................................................................. 63 Acenas II v. Court of Appeals, 247 SCRA 773 ................................................. 351 Acosta v. COMELEC, 293 SCRA 578, 580....................................................... 522 Acosta v. People, 5 SCRA 774, 779 .................................................................... 509 Acuna v. Deputy Ombudsman for Luzon ......................................................... 617

691


Adamos v. J.M. Tuason & Co., Inc., 25 SCRA 529, 534 ................................. 183 Adez Realty, Inc. v. Court of Appeals, 212 SCRA 623, 628 .......................... 190 Afdal v. Carlos, 636 SCRA 389, 396,

December 1, 2010........................................................... 189, 193, 624, 629 Afdal v. Carlos, 636 SCRA 389, 397-398, December 1, 2010 ....................... 392

AFP Mutual Benefit Association, Inc. v. Regional Trial Court, Marikina City, Branch 193,

642 SCRA 720, 727, February 14, 2011 .................................................... 624 Ago v. Court of Appeals, 6 SCRA 530, 534 ....................................................... 529 Agrarian Reform Beneficiaries Association v.

Nicolas, 567 SCRA 540, 552 ...................................................................... 212 Agro Conglomerates, Inc. v. Court of Appeals,

348 SCRA 450, 460 ....................................................................................... 241 Aguam v. Court of Appeals, 332 SCRA 784, 789 .............................................. 23 Aguas v. Llamas, 5 SCRA 959 ........................................................................... 246 Aguas v. Llamos, 5 SCRA 959, 961 ................................................................... 249 Aguila v. Court of Appeals, 319 SCRA 246, 253 ............................................. 234 Aguila v. Court of Appeals, 319 SCRA 246, 254 ............................................. 233 Agulto v. Tecson, 476 SCRA 395, 402 ...................................................... 448, 449 Agustin v. Sps. De los Santos, 576 SCRA 576 ................................................. 541 Air France v. Carrascoso, 18 SCRA 155 ........................................................... 224 Air Manila v. Court of Industrial Relations,

83 SCRA 579, 589 ........................................................................................... 30 Air Philippines Corporation v. Pennswell, Inc.,

540 SCRA 215, G.R. No. 172835, December 13, 2007 ........................... 473 Alaban v. CA, 470 SCRA 697, 705 ..................................................................... 624 Alaban v. CA, 470 SCRA 697, 707 ..................................................................... 630 Alaban v. Court of Appeals, 470 SCRA 697, 706 ................................... ....... 190 Alaban v. Court of Appeals, 470 SCRA 697, 708 ................................... 632, 633 Alba v. Court of Appeals, 465 SCRA 495, 505-506 ............................ 88, 89, 378 Alba v. Court of Appeals, 465 SCRA 495, 508 ................................................. 632 Alberto v. Court of Appeals, 334 SCRA 756 .................................................... 213 Alberto v. Court of Appeals, 334 SCRA 756, 768-769 .................................... 213 Alcantara v. Philippine Commercial and International

Bank, 634 SCRA 48, 59, October 20, 2010 ................................................. 14 Alcazaren v. Univet Agricultural Products, Inc.,

475 SCRA 636, 650 ...................................................................................... 106 Aldeguer v. Gemelo, 68 Phil. 421 ....................................................................... 655 Aldeguer v. Gemelo, 68 Phil. 421 citing Gould v.

Hayden, 63 Ind., 443 .................................................................................... 657 Aldeguer v. Gemelo, 68 Phil. 421, 423 ..................................................... 654, 655 Almendras v. Court of Appeals, 293 SCRA 540, 544 ..................................... 245

CASE INDEX 693

Alonso v. Villamor, 16 Phil. 315, 321- 322 ............................................................14 Alpine Lending Investors v. Corpuz, 508 SCRA 45, 48-49 ............................. 355 Altavas v. Court of Appeals, 106 Phil. 940, 943 .................................................... 2 Alvero v. De la Rosa, 76 Phil. 428, 434 .................................................................... 2 Amargo v. Court of Appeals, 53 SCRA 64, 68 ................................................... 527 Ampeloquio v. Court of Appeals, 333 SCRA 465 .............................................. 327 Ang Ping v. Court of Appeals, 310 SCRA 343, 349 .............................................86 Anonuevo v. Intestate Estate of Jalandoni,

636 SCRA 420, 428, December 1, 2010 ..................................................... 350 Ansaldo v. Fidelity & Surety Company, 88 Phil. 547, 548 ............................. 651 Anuran v. Aquino, 38 Phil. 29 ............................................................................. 375 Apo Fruits Corporation v. Land Bank of the Philippines,

632 SCRA 727, 762-763, G.R. No. 164195, October 12, 2010, citing Ginete v. Court of Appeals, 292 SCRA 38......................................................................................................11

Apo Fruits Corporation v. Land Bank of the Philippines, 632 SCRA 727, 760, October 12, 2010 ....................................................... 537

Apo Fruits Corporation v. Land Bank of the Philippines, 632 SCRA 727, 760-761,G.R. No. 164195, October 12, 2010 ............................................................................................ 540

Apo Fruits Corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5, 2011 as cited by Justice Abad ...................... 540

Apuyan v. Haldeman, 438 SCRA 402 ................................................................ 562 Aquino v. Aure, 546 SCRA 71 .............................................................................. 164 Aquintey v. Tibong, 515 SCRA 414, 433 ............................................................ 314 Araneta, Inc. v. Lyric Factor Exchange, Inc.,

58 Phil. 736, 741 ............................................................................................. 296 Arap v. Mustafa, 379 SCRA 1, 4-5 ...................................................................... 531 Arenas v. Court of Appeals, G.R. No. 126640,

November 23, 2000 ........................................................................... 334, 338 Aron v. Realon, 450 SCRA 372, 388 ................................................................... 235 Arra Realty Corporation v. Paces International

Corporation, 636 SCRA 339, 345, December 1, 2010 citing Pasiona, Jr. v. Court of Appeals, G.R. No. 165471, July 21, 2008, 559 SCRA 137 ...................................................................... 537

Arra Realty Corporation v. Paces International Corporation, 636 SCRA 339, 345, December 1, 2010 citing Pasiona, Jr. v. Court of Appeals, G.R. No. 165471, July 21, 2008, 559 SCRA 137 ...................................................................... 538

Arranza v. B.F. Homes, Inc., 333 SCRA 799, 812 ............................... 66, 69, 70 Aruego, Jr. v. Court of Appeals, 254 SCRA 711, 719-720 ..................................78 Asia International Auctioneers, Inc. v. Parayno,

540 SCRA 536, 546 ..........................................................................................61


Asia International Auctioneers, Inc. v. Parayno, Jr., 540 SCRA 536, 546-547 ................................................................................ 81

Asia United Bank v. Goodland Company Inc., 637 SCRA 691, 696, December 8, 2010 ...................................... ....................

Asia United Bank v. Goodland Company, Inc., G.R. No. 191388, March 9, 2011 .................................................. 273, 278

Asian Center for Career and Employment System and Services v. NLRC, 297 SCRA 727, 731 ............................................... 80

Asian Development and Construction Corporation v. Philippine Commercial and Industrial Bank, 488 SCRA 192,203 ....................................................................................... 551

Asian Terminals, Inc. v. NLRC, 541 SCRA 105,115 ...................................... 583 Asiatrust Development Bank v. First Aikka Development,

Inc. and Univac Development, Inc., G.R. No. 179558, June 11, 2011 ................................................................................................... 81

Asiatrust Development Bank v. First Aikka Development, Inc., G.R. No. 179558, June 11, 2011 ................................ 16

Asiavest Limited v. Court of Appeals, 296 SCRA 539 ................................... 196 Asiavest Limited v. Court of Appeals,

296 SCRA 539, 552 ......................................................................... 87, 88, 191 Asiavest Limited v. Court of Appeals,

296 SCRA 539, 554 .................................................................. 194, 378, 409 Asmala v. COMELEC, 289 SCRA 746, 752 ....................................................... 79 Asset Privatization Trust v. Court of Appeals,

300 SCRA 579, 614 ....................................................................................... 232 Asset Privatization Trust v. Court of Appeals,

324 SCRA 533, 546 ...................................................................................... 366 Association of Integrated Security Force of Bislig-ALU

v. Court of Appeals, 467 SCRA 483, 490-491 ........................................... 576 Astorga v. People, 437 SCRA 152, 155 ............................................................... 13 Ateneo de Naga University v. Manalo, 458 SCRA 325 ................................. 285 Atienza v. Board of Medicine, 642 SCRA 523, 529,

February 9, 2011 ................................................................................................4 Atkins v. Domingo, 44 Phil. 680 ......................................................................... 415 Auction in Malinta, Inc. v. Luyaben, 515 SCRA 569, 575 ............................. 172 Auction in Malinta, Inc. v. Luyaben, 515 SCRA 569, 576 ............................. 173 Avon Cosmetics, Inc. v. LUNA, 511 SCRA 376, 388 ........................................ 94 Ayala Corporation v. Rosa-Diana Realty, 346 SCRA 663 ............................. 535 Ayo v. Violago-Isnani, 308 SCRA 543, 551 .......... ........................................... 642 Azola Farms v. Court of Appeals, 442 SCRA 133,141 ................................... 360 BA Finance Corp. v. Co., G.R. No. 105751,

30 June 1993, 224 SCRA 163 ....................................................... 442, 443

CASE INDEX 695

BA Finance Corporation v. Co, et al., G.R. No. 105751, June 30,1993 ................................................................................................... 343

Bachrach Corporation v. Court of Appeals, 296 SCRA 487, 495 ....................................................................................... 648

Balagtas v. Court of Appeals, 317 SCRA 69, 776-77 ....................................... 234 Baltazar v. Ombudsman, 510 SCRA 74, 83 ...................................................... 236 Baluyot v. Poblete, 514 SCRA 370, 379 ............................................................. 580 Banco Do Brasil v. Court of Appeals,

333 SCRA 545, 557 ....................................................... 400, 406, 407, 410 Banco do Brasil v. Court of Appeals, 333 SCRA 545, 557 ....................... 96, 97 Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 927-928 ..................... 97 Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 928 ........................ 191,192 Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 930 ........................ 408, 409 Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 949 ........................... 375 Banco Filipino Savings & Mortgage Bank v.

Court of Appeals, 332 SCRA 241, 253 ........................................... 263, 267 Banco Filipino Savings and Mortgage Bank v. Court

of Appeals, 334 SCRA 305, 316 ..................................................................... 66 Bangkok Bank Public Company Limited v. Lee,

479 SCRA 267, 273-274 ................................................................................ 660 Bangkok Bank Public Company Limited v. Lee,

G.R. No. 159806, January 20, 2006 ................................................... 661, 662 Bangkok Republic Company Limited v. Lee,

G.R. No. 159806, January 20, 2006 ............................................................ 666 Bank of Commerce v. Perlas-Bemabe, 634 SCRA 107,118,

October 20, 2010 ............................................................................................ 263 Bank of Commerce v. Serrano, 451 SCRA 484, 491 ........................................ 580 Bank of the Philippine Islands v. ALS Management

& Development Corporation, 427 SCRA 564, 575 ............................... 67, 84 Bank of the Philippine Islands v. Court of Appeals,

569 SCRA 510, 523 ........................................................................................ 270 Bank of the Philippine Islands v. Court of Appeals,

G.R. No. 168313, October 6, 2010 ............................................................... 285 Bantolino v. Coca-Cola Bottlers, Phil., Inc.,

403 SCRA 699, 703 .................. ........................................................................... Bantua v. Mercader, 350 SCRA 86, 96 ................................................................ 78 Barangay Dasmarinas v. Creative Play Comer School,

G.R. No. 169942, January 24, 2011 .............................................................. 16 Barangay Piapi v. Talip, 469 SCRA 409, 413 ................................... 118,136, 214 Barangay Piapi v. Talip, 469 SCRA 409, 413-415 ........................................... 128 Barangay San Roque v. Heirs of Pastor,

334 SCRA 127,132-133 ................................................................................ 135


Barangay San Roque v. Heirs of Pastor, 334 SCRA 127, 133 ....................................................................................... 136

Barde v. Posiquit, 164 SCRA 304, 310 ............................................................... 448 Baritua v. Mercader, 350 SCRA 86, 96................................................................ 80 Barlin v. Ramirez, 7 Phil. 47, 41 ......................................................................... 228 Barrazona v. RTC of Baguio, 486 SCRA 555, 561 ........................................... 201 Barrazona v. RTC of Baguio, 486 SCRA 555, 561-562 ................................... 524 Barrazona v. RTC, Branch 61, Baguio City, 486 SCRA 555 ....................... 214 Barrete v. Amila, 230 SCRA 219, 222-223 ........................................................ 674 Bases Conversion Development Authority v. Uy,

506 SCRA 524 ................................................................................................ 284 Basilio v. Dinio, 634 SCRA 516, 523, November 15, 2010 ............................... 79 Bastida v. Menzi & Co., Inc., 58 Phil. 1880 ....................................................... 365 Bausa v. Heirs of Juan Dino, 563 SCRA 533, 540-541 ................................... 654 Bautista v. De Borja, 18 SCRA 474 .................................................................... 173 Bautista v. Maya-Maya Cottages, Inc.,

476 SCRA 416, 419 ............................................................................ 355, 356 Bayer Philippines, Inc. v. Court of Appeals,

340 SCRA 437, 444 ....................................................................................... 334 Beatingo v. Gasis, 642 SCRA 539, 547, February 9, 2011....576, 589 Bell v. Court of Appeals, 267 SCRA 530, 542 ..................................................... 30 Belongilot v. Cua, 636 SCRA 34, 41, 42, November 24, 2010 ........................ 616 Beltran v. Balbuena, 53 Phil. 697, 701 .............................................................. 335 Benguet Corporation v. Cordillera Caraballo

Mission, Inc., 469 SCRA 381, 384 ............................................................... 270 Berba v. Pablo, 474 SCRA 686 ............................................................................ 163 Bergonia v. Decano, 317 SCRA 660, 665 ........................................................... 644 Bermejo v. Barrios, 31 SCRA 764, 776 .................................................................. 2 Bemarte v. Court of Appeals, 263 SCRA 323, 339............................................. 79 BF Homes, Inc. v. Manila Electric Company,

636 SCRA 495, 510, December 6, 2010 ........................................................ 69 BF Homes, Inc. v. Manila Electric Company,

636 SCRA 495, 515, December 6, 2010 ........................................................ 77 Biaco v. Philippine Countryside Rural Bank,

515 SCRA 106 ..................................................................................... 88,195 Biaco v. Philippine Countryside Rural Bank,

515 SCRA 106,115 ......................................................................................... 193 Biaco v. Philippine Countryside Rural Bank,

515 SCRA 106,115-116 ................................................................................. 378 Biaco v. Philippine Countryside Rural Bank,

515 SCRA 106,118 ........................................................................................ 192 Blossoms & Co. v. Manila Gas Corporation, 55 Phil. 226, 240-241 ............................................................................................. 218

CASE INDEX 697

Board of Liquidators v. Kalaw, 20 SCRA 987, 1000 ........................................ 250 Board of Optometry v. Colet, 260 SCRA 88 ...................................................... 229 Bobis v. Court of Appeals, 348 SCRA 23, 30 ..................................................... 632 Boiser v. Aguirre, Jr., 458 SCRA 430, 438 ........................................................ 370 Bokingo v. CA, 489 SCRA 521, 532-533 ............................................................ 138 Bolisay v. Alcid, 85 SCRA 213, 220..................................................................... 139 Borlasa v. Polistico, 47 Phil. 345 ......................................................................... 254 Borlasa v. Polistico, 47 Phil. 345, 348 ................................................................. 240 Breslin v. Luzon Stevedoring, 84 Phil. 618, 626-627 ....................................... 355 Briones-Vasquez v. Court of Appeals, 450 SCRA 482, 491 ............................ 539 Briones-Vasquez v. Court of Appeals, 450 SCRA 482, 491-492 ...546 Brioso v. Rili-Mariano, 396 SCRA 549, 556-557 .............................................. 248 Buan v. Court of Appeals, 235 SCRA 424, 432 ................................................. 646 Buaya v. Stronghold Insurance Co., Inc., 342 SCRA 576, 585 ................... 643 Buenaventura v. Buenaventura, 94 Phil. 193,196........................................... 357 Bustos v. Lucero, 81 Phil. 640, 650 ......................................................................... 1 Bustos v. Lucero, 81 Phil. 640, 653-654 ................................................................. 1 Cabaero v. Cantos, 271 SCRA 391, 400 ............................................................. 340 CABEU- NFL v. CAB, 635 SCRA 339, 352,

November 17, 2010 ........................................................................................ 276 Cabigon v. Pepsi-Cola Products, Philippines, Inc.,

541 SCRA 149, 156-157 ............................................................................... 533 Cabrera v. Lapid, 510 SCRA 55 .......................................................................... 618 Cabrera v. Lapid, 510 SCRA 55, 66 ..................................................... 66, 67, 68 Cabrera v. Lapid, G.R. No. 129098, December 6, 2006 ................................... 617 Cadano v. Cadano, 49 SCRA 33 .......................................................................... 549 Cadimas v. Carrion, 567 SCRA 101 ..................................................................... 72 Cadimas v. Carrion, 567 SCRA 101,108 .............................................................. 70 Cadimas v. Carrion, 567 SCRA 101,116 .............................................................. 72 Cagayan de Oro Coliseum v. Court of Appeals,

320 SCRA 731, 754 ........................................................................................ 642 Caina v. Court of Appeals, 239 SCRA 252, 262 ................................................ 655 Calalang v. Register of Deeds of Quezon City, 231 SCRA 88 ........... 684 Calalas v. Court of Appeals, 332 SCRA 356 ...................................................... 294 Calalas v. Court of Appeals, 332 SCRA 356, 361 ............................................. 198 Calaunan v. Madolaria, 642 SCRA 1, 9, February 8, 2011 ............. 673 Calimlim v. Ramirez, 118 SCRA 399, 406 ................................................. 81, 84 Calo and San Jose v. Roldan, 76 Phil. 445, 451 ................................................ 356 Calo v. Ajax International, Inc., 22 SCRA 996, 999 ......................................... 335 Calo v. Villanueva, 480 SCRA 561 ...................................................................... 284 Camacho v. Court of Appeals, 287 SCRA 611 .................................................. 658 Camitan v. Court of Appeals, 511 SCRA 364, 373 ........................................... 314


Camitan v. Court of Appeals, 511 SCRA 364, 373-374 .................................. 312 Campbel v. Martin, 87 Ind., 577 and Becknell v.

Becknell, 110 Ind., 47 ................................................................................... 657 Campos Rueda Corporation v. Bautista, 6 SCRA 240, 244 .......................... 364 Canada v. All Commodities Marketing Corporation,

569 SCRA 321, 326 ....................................................................................... 581 Caneda v. Court of Appeals, 62 O.G. 1179, 5 SCRA 1131 ............................. 376 Cafiete v. Genuino Ice Company, 542 SCRA 206, 217 ................................... 266 Cang v. Court of Appeals, 296 SCRA 128,141 ................................................... 80 Cano-Gutierrez v. Gutierrez, 341 SCRA 670, 675 .......................................... 374 Canonizado v. Benitez, 127 SCRA 610; 616 ..................................................... 659 Canton v. City of Cebu, 515 SCRA 441, 448 .......................................... 14, 576 Capa v. Court of Appeals, 502 SCRA 406, 417-418 ........................................ 678 Capiral v. Robles, G.R. No. 173628, November 16, 2011 ..................... 436,437 Carballo v. Encamacion, 92 Phil. 974, 976 ......................................................... 87 Cariaga v. People, G.R. No. 180010, July 30, 2010 ........................................... 28 Carillo v. Court of Appeals, 503 SCRA 66, 75-76 ............................................ 232 Carpio v. Sulu Resource Dev. Corp.,

387 SCRA 128, 138-139 .............................................................................. 614 Carpio v. Sulu Resources Dev. Corp., 387 SCRA 128 .................................... 639 Castro v. David, 100 Phil. 454, 458.................................................................... 349 Castro v. Malazo, 99 SCRA 164, 170 ................................................................. 529 Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451 ................................. 319 Catindig v. Vda. De Menenses, 641 SCRA 350, 362,

February 2, 2011 ............................................................................................. 67 Catindig v. Vda. De Meneses, 641 SCRA 350, 359-360,

February 2, 2011 ........................................................................................... 117 Cavile v. Heirs of Clarita Cavile, 400 SCRA 255, 262 .................................... 283 Cayetano v. Ceguerra, 13 SCRA 73, 79 ............................................................ 625 Cebu International Finance Corporation v. Cabigon,

515 SCRA 616, 622 ...................................................................................... 650 Cebu Women’s Club v. De la Victoria, G.R. No. 120060,

March 9, 2000 ................................................................................................ 611 Ceroferr Realty Corporation v. Court of Appeals,

376 SCRA 144,148 ........................................................................................ 291 Cerrofer Realty Corporation v. Court of Appeals,

376 SCRA 144, 149 ...................................................................................... 211 Chan v. Chan, 569 SCRA 106,116-117 ............................................................. 367 Chan v. Court of Appeals, 457 SCRA 502, 513 ................................................ 523 China Banking Corporation v. Mondragon International

Philippines, Inc., 475 SCRA 332, 337-338 ................................................ 285 China Banking Corporation v. Padilla, 514 SCRA 35,42 .............................. 345

CASE INDEX 699

China Road and Bridge Corp. v. Court of Appeals, 348 SCRA 401,412 ........................................................................................ 208

Ching v. Court of Appeals, 331 SCRA 16, 33 ....................................... 364, 365 Ching v. Court of Appeals, 423 SCRA 356, 368-369 ....................................... 676 Ching v. Family Savings Bank, 634 SCRA 586, 601,

November 15, 2010 ....................................................................................... 672 Chua v. MetroBank, 596 SCRA 524, 535-536 ................................................. 275 Chua v. Torres, 468 SCRA 358, 365 .................................................................. 270 Chua v. Torres, 468 SCRA 358, 367 .................................................................. 240 Chua v. Total Office Products and Services [Topros], Inc.,

471 SCRA 500, 507 ....................................................................................... 184 Cindy and Lynsy Garment v. NLRC, 284 SCRA 38, 45 .................................. 95 Citibank v. Sabeniano, G.R. No. 156132, October 12, 2006 ........................ 276 Citibank, N.A v. Sabeniano, 504 SCRA 378, 412 ............................................ 532 Citibank, N.A. v. Sabeniano, 504 SCRA 378,412- 413 ................................... 532 Citizens Surety & Insurance Co., Inc. v. Melencio-Herrera,

38 SCRA 369 .................................................................................................. 195 Citizens Surety and Insurance Co., Inc. v. Melencio

Herrera, 38 SCRA 369, 372 ......................................................................... 401 Citizens Surety and Insurance Co., Inc. v.

Melencio-Herrera, 38 SCRA 369, 371-372................................................ 402 City of Bacolod v. San Miguel Brewery, Inc.,

29 SCRA 819,827 .......................................................................................... 218 City of Dumaguete v. Philippine Ports Authority,

G.R. No. 168973, August 24, 2011 .................... 14, 69, 70, 72, 113,114 Clarion Printing House, Inc. v. National Labor Relations

Commission, 461 SCRA 289 ........................................................................... 8 Co v. Court of Appeals, 196 SCRA 705, 710 ..................................................... 640 Co v. Vargas, G.R. No. 195167, November 16, 2011 ....................................... 604 Co-Unjieng v. Hijos Mabalacat Sugar Company,

70 Phil. 380, 384 ............................................................................................ 648 Coca v. De Pangilinan, 171 Phil. 246 ................................................................ 139 Comilang v. Burcena, 482 SCRA 342, 349 ....................................................... 582

Commercial Union Assurance Company, Ltd. v. Lepanto Consolidated Mining Company, 86 SCRA 79, 89 citing

Novino v. Court of Appeals, 8 SCRA 279 .................................................. 526 Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, 504

SCRA 484, 496 citing Fortich v. Corona, 298 SCRA 678 ................................................................................... 15

Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, 504 SCRA 484, 494-495 ........................................................ 580

Commissioner of Internal Revenue v. Mirant Pagbilao Corporation, 504 SCRA 484, 496 ................................................................. 11


Compania General de Tabacos v. Martinez and Nolan, 29 Phil. 515 .........................................................................................657

Compania General de Tabacos, v. Martinez and Nolan, 29 Phil. 515, 520-521 ........................................................................654

Complaint of Arrienda Against Justices Puno, Kapunan, Pardo, Ynares-Santiago, et al., 460 SCRA 1,13-14 ......................526

Concepcion v. CFI ofBulacan, 119 SCRA 222 ....................................... 74 Concerned Officials of the MWSS v. Vasquez,

240 SCRA 502 ...................................................................................... 77 Concrete Aggregate Corporation v. Court of Appeals,

266 SCRA 88,95 .................................................................................260 Conde v. Intermediate Appellate Court, 144 SCRA 144, 153......... 632 Consolidated Bank and Trust Corporation v. Del

Monte Motor Works, Inc., 465 SCRA 117,135 .............................521 Consolidated Plyware Industries v. Breva,

166 SCRA 589, 594 ...........................................................................401 Consolidated Plywood v. Breva, 166 SCRA 589 .................................195 Cooperative Development Authority v. Dolefil Agrarian

Reform Beneficiaries Cooperative, 382 SCRA 552, 565 ........... 252 Cordova v. Tomilla, 246 SCRA 430, 432 .................................... 246, 249 Corona International, Inc. v. Court of Appeals,

343 SCRA 512, 519 ...........................................................................661 Corpus v. Sandiganbayan, 442 SCRA 294, 309 ..................................523 Cramer v. Aiken, 63 App. D.C. 16, 68 F .2d 761, 762,

cited in Black’s, 5th ed. 930 .............................................................315 Crisologo v. Daray, 562 SCRA 382, 391 ...............................................591 Cristobal Cruz v. Cristobal, 498 SCRA 37 ...........................................101 Cruz v. Court of Appeals, 388 SCRA 72, 80 ......................................370 Cruz v. Court of Appeals, 476 SCRA 581, 586 ................................. 14,16 Cruz v. Gingoyon, G.R. No. 170404, September 28, 2011 ............ 32, 33 Cruz v. Tan, 87 Phil. 627, 629 ................................................................137 Cu-Unjieng v. Court of Appeals, 479 SCRA 594, 601 ........................575 Cu-Unjieng v. Court of Appeals, 479 SCRA 594, 602 ........................584 Cu-Unjieng v. Court of Appeals, 479 SCRA 594, 604 .......................... 16 Cu-Unjieng v. Mabalacat Sugar Co., 70 Phil. 384 ..............................545 Cuarto v. De Luna, 22 SCRA 459, 461 .................................................424 Cubero v. Laguna West Multi-Purpose Cooperatives, Inc.,

509 SCRA 410, 416 ............................................................................. 38 Cubero v. Laguna West Multi-Purpose Cooperatives, Inc.,

509 SCRA 410 ...................................................................................... 78 Cuenca v. PCGG, 535 SCRA 102,114 .............................................. 61, 68 Cuizon v. Ramolete, 129 SCRA 495, 499..............................................139

CASE INDEX 701

Culili v. Eastern Telecommunications Philippines, Inc., 642 SCRA, 338, 352- 353, February 9, 2011 ............ ; ................... 615

Cunanan v. Amparo, 80 Phil. 227 ........................................................ 139 Cunanan v. Court of Appeals, 25 SCRA 263, 264 .................... 647, 648 Custodio v. Corrado, 435 SCRA 500, 509 ............................................. 544 Cynthia Alaban v. Court of Appeals,

470 SCRA 697, 706 ............................................................................ 400 Dabuco v. Court of Appeals, 322 SCRA 853, 857 ................................ 207 Dacuycoy v. Intermediate Appellate Court,

195 SCRA 641, 645-646..................................................................... 175 Dalandan v. Julio, 10 SCRA 401, 410 ................................................... 424 Damasco v. NLRC, 346 SCRA 714, 720 ................................................ 279 Danao v. Court of Appeals, 154 SCRA 446, 448 .................................. 218 Dar v. Alonzo-Legasto, 339 SCRA 306, 309-310.................................. 283 Davao Light & Power Co., Inc. v. Court of Appeals,

204 SCRA 343 ....................................................................................... 86 Davao Light & Power Co., Inc. v. Court of Appeals,

204 SCRA 343, 347 .............................................................................. 86 David-Chan v. Court of Appeals, 268 SCRA 677, 687 .................. 30, 31 Dayrit v. Philippine Bank of Communications,

386 SCRA 117, 124-126, citing Videogram Regulatory Board v. Court of Appeals, 265 SCRA 50 .................... 21

De Castro v. Court of Appeals, 384 SCRA 607, 613 ............................ 237 De Castro v. Fernandez, Jr., 515 SCRA 682 ........................................ 264 De Dios v. Bristol Laboratories, 55 SCRA 349, 354 ............................ 424 De Guia v. De Guia, 356 SCRA 287 ....................................................... 283 De Jesus v. Coloso, 1 SCRA 272, 273-274 ............................................. 183 De Jesus v. Garcia, 19 SCRA 554, 558 .................................................... 69 De Jesus v. Office of the Ombudsman, G.R. No. 184129,

February 16, 2011 .............................................................................. 620 De la Cruz v. Court of Appeals, 133 SCRA 520, 527 ........................ 218 De la Cruz v. Court of Appeals, 510 SCRA 103, 104 .......................... 61 De la Cruz v. Court of Appeals, 510 SCRA 103,114 ............................. 69 De la Cruz v. Court of Appeals, 510 SCRA 103, 115 ........................ 208 De la Cruz v. Court of Appeals, 510 SCRA 103, 115, 116 ............... 209 De la Cruz v. Court of Appeals, 510 SCRA 103,116 ............................. 74 De la Cruz v. Court of Appeals, 510 SCRA 103,117 ..................... 71, 213 De la Cruz v. Court of Appeals, 510 SCRA 103,120 ............................. 72 De la Cruz v. Court of Appeals, 510 SCRA 103,124 ............................. 11 De la Cruz v. Court of Appeals, 510 SCRA 103,124,

citing Barnes v. Padilla, 461 SCRA 533 ........................................... 14 De la Rama v. Mendiola, 401 SCRA 704, 711 ....................................... 65


De la Rosa v. Roldan, 501 SCRA 34, 51 .......................... 69, 70, 78, 215 De los Reyes v. Spouses Odones, 646 SCRA 328, 334,

G.R. No. 178096, March 23, 2011 ......................................... 201, 202 De los Reyes v. Spouses Odones, G.R. No. 178096,

March 23, 2011 .................................................................................... 71 De los Reyes v. Ugarte, 75 Phil. 505 ..................................................... 549 De los Santos v. Elizalde, 514 SCRA 14 ............................................... 101 De los Santos v. Elizalde, 514 SCRA 14, 27 ............................... 300, 559 De los Santos v. Vda. De Mangubat,

535 SCRA 411, 421- 422 .................................................................. 565 De Mesa v. Court of Appeals, 231 SCRA 773, 781 ............................ 644 Declarador v. Bansales, 499 SCRA 341, 348 citing

Fortich v. Corona, 289 SCRA 624 ............ ....................................... 33 Del Monte Philippines, Inc. Employees Agrarian Reform

Beneficiaries Cooperative [DEARBC] v. Sangunay, 641 SCRA 87, 96, January 31, 2011 ................................................ 71

Del Rosario v. Villegas, 49 Phil. 634, 644 ............................................ 648 Delta Motor Sales Corporation v. Mangosing,

70 SCRA 598, 602 ............................................................................. 385 Delta Motors Corporation v. Court of Appeals,

168 SCRA 206, 212 ........................................................................... 680 Delta Motors v. Court of Appeals, 276 SCRA 212, 223 ..................... 535 Delta Sales v. Pre-Stress International, G.R. No. 176768,

January 12, 2009............................................................................... 608 Denso [Phils.], Inc. v. Intermediate Appellate Court,

148 SCRA 280 .................................................................................... 537 Department of Agrarian Reform v. Uy, 515 SCRA 376, 399 ................ 6 Development Bank of the Philippines v. Commission

on Audit, 498 SCRA 537, 543 ......................................................... 304 Diamond Builders Conglomeration v. Country Bankers

Corp., 540 SCRA 194 .............................................................. 547, 548 Diaz v. Diaz, 331 SCRA 302, 316 .......................................................... 212 Diaz v. Diaz, 331 SCRA 302, 322-323 ..................................................... 21 Dico v. Court of Appeals, 452 SCRA 441, 454 ..................................... 583 Digital Microwave Corporation v. Court of Appeals,

328 SCRA 286 .................................................................................... 279 Dionisio v. Sison Puerto, 60 SCRA 471, 477 ......................................... 73 Director of Lands v. Roman Archbishop of Manila

(41 Phil. 121) ...................................................................................... 516 Director of Lands v. Sanz, 45 Phil. 117 ................................................ 546 DMA Shipping Philippines, Inc. v. Cabilar,

452 SCRA 551, 558 ........................................................................... 610

CASE INDEX 703

Do-All Metals Industries, Inc. v. Security Bank Corporation, G.R. No. 176339, January 10, 2011 ........................ 309

Docena v. Lapesura, 355 SCRA 658, 668-669 ...................................... 283 Docena v. Lapser, 355 SCRA 658 ........................................................... 637 Domagas v. Jensen, 448 SCRA 663 ....................................................... 394 Domagas v. Jensen, 448 SCRA 663, 673 .............................................. 187 Domagas v. Jensen, 448 SCRA 663, 674 .............................................. 192 Domagas v. Jensen, 448 SCRA 663, 676 .............................................. 189 Domingo v. Court of Appeals, 325 Phil. 469 ......................................... 548 Domondon v. Lopez, 383 SCRA 376, 385 .............................................. 207 Dormitorio v. Fernandez, 72 SCRA 366, 393 ....................................... 647 Douglas Lu Ym v. Gertrudes Nabua,

452 SCRA 298, 305-306 .................................................................... 433 Durban Apartments Corporation v. Pioneer Insurance and Surety

Corporation, 639 SCRA 441, 450, January 12, 2011 ............................................................................... 452

Durisol Philippines, Inc. v. Court of Appeals, 377 SCRA 353 .................................................................................... 135

Dy v. Court of Appeals, 304 SCRA 331 ................................................. 291 Dy v. NLRC, 145 SCRA 211, 213 ........................................................... 581 E. ........................................................................................................................ . Villarosa & Partner Ltd. v. Benito, 312 SCRA 65, 73 ...................... 383 E. B. Villarosa & Partner Ltd. v. Benito,

312 SCRA 65,73-74 ........................................................ 385, 386, 387 Echegaray v. Secretary of Justice, 301 SCRA 96,106 ........................... 79 Echegaray v. Secretary of Justice, 301 SCRA 96,108 ...................61, 62 Echegaray v. Secretary of Justice, 301 SCRA 96,112 ........................... 10 Echevarria v. Parsons Hardware Co., 51 Phil. 980 ............................. 376 Elbina v. Ceniza, 498 SCRA 438, 443.................................................... 564 Emergency Loan Pawnshop v. Court of Appeals,

353 SCRA 89, 92 ................................................................................ 176 Emergency Loan Pawnshop, Inc. v. Court of Appeals,

353 SCRA 89, 91 ..................................................................... 183,186 Enemecio v. Office of the Ombudsman, 419 SCRA 82 ............ 616, 618 Enemecio v. Office of the Ombudsman, 419 SCRA 82, 90 ................. 106 Enojas v. COMELEC, 283 SCRA 229, 238 ........................................... 207 Enriquez v. Court of Appeals, 372 SCRA 372, 376 ............................. 655 Enriquez v. Padilla, 77 Phil. 373 ............................................................ 549 Escareal v. Philippine Airlines, Inc., 455 SCRA 119,133 ................... 622 Espina v. Court of Appeals, 519 SCRA 327 .......................................... 284 Espineli v. Santiago, 107 Phil. 830 ........................................................ 185 Espiritu v. Tankiansee, G.R. No. 164153, June 13, 2011 .................. 278 E i l Al 172 SCRA 315 325 569


Estolas v. Acena, 448 SCRA 233, 245 ..................................................... 94 Estrada v. Desierto................................................................................... 617 Ex-Bataan Veterans Security Agency, Inc. v. NLRC,

250 SCRA 418, 427 ............................................................................ 645 Executive Secretary v. Northeast Freight,

581 SCRA 736, 743 ............................................................................ 348 F. A.T. Key Computer Systems v. Online Networks

International, Inc., 641 SCRA 390, 408, February 2, 2011 ......... 13 F. A.T. Key Computer Systems v. Online Networks

International, Inc., 641 SCRA 390, 408, February 2, 2011....604 F. A.T. Key Computer Systems v. Online Networks

International, Inc., 641 SCRA 390, 408, February 2, 2011....604 Fabian v. Desierto, 295 SCRA 470 ................................ 616, 617, 618 Fabian v. Desierto, 295 SCRA 470,483 .................................................. 80 Facura v. Court of Appeals, G.R. No. 166495,

February 16, 2011 ............................................................................. 620 Far Eastern Shipping Company v. Court of Appeals,

297 SCRA 30,53 ................................................................................. 279 Federation of United NAMARCO Distributors,

Inc. v. Court of Appeals, 4 SCRA 867, 888 ................................... 663 FELS Energy, Inc. v. Province of Batangas,

516 SCRA 186, 201 .................................................................. 429, 431 Fereira v. Vda. De Gonzales, 104 Phil. 143 ......................................... 248 Fernandez v. Court of Appeals, 458 SCRA 454, 465 .......................... 598 Fernando v. Fernando, 641 SCRA 202, 208,

January 31, 2011 .............................................................................. 608 Fernando v. Santamaria, 446 SCRA 136,142 ..................................... 545 FGU Insurance Corporation v. G.P. Sarmiento Trucking

Corporation, 386 SCRA 312, 320 ................................................... 198 FGU Insurance Corporation v. G.P. Sarmiento Trucking

Corporation, 386 SCRA 312 ............................................................ 294 Fideldia v. Songcuan, 465 SCRA 218, 226 ........................................... 647 Fiestan v. Court of Appeals, 185 SCRA 751, 757................................ 679 Figuration v. Libi, 539 SCRA 50, 62 ..................................................... 229 Figuration v. Libi, 539 SCRA 50, 62-63 ................................................ 233 Fil-Estate Properties, Inc. v. Homena-Valencia,

555 SCRA 345, 349-350 ................................................................... 566 Filipinas Palmoil Processing, Inc. v. Dejapa,

641 SCRA 572, 581, February 7, 2011 ........................ 537, 539, 540 Filipro, Inc. v. Permanent Savings & Loans Bank,

503 SCRA 430, 438 ............................................................................ 538 Financial Building Corporation v. Forbes Park

Association, 338 SCRA 346 ............................................................. 334

CASE INDEX 705

Financial Building Corporation v. Forbes Park Association, 338 SCRA 346, 354 ..................................................... 337

Firestone Ceramics v. Court of Appeals, 313 SCRA 522 ................... 352 First Aqua Traders, Inc. v. Bank of the Philippine

Islands, 514 SCRA 223, 226-227 .............................................. 3, 564 First United Constructors Corporation v.

Court of Appeals, 511 SCRA 318, 326-327 ................................... 538 Five Star Marketing Co., Inc. v. Booc, 535 SCRA 28, 42-43 ............. 601 Five Star Marketing Corporation v. Booc, 535 SCRA 28 .................. 595 Five Star Marketing Corporation v. Booc,

535 SCRA 28, 41-42 .......................................................................... 594 Five Star Marketing Corporation v. Booc,

535 SCRA 28, 47................................................................................ 145 Florendo v. Paramount Insurance Corp., 610 SCRA 377,

G.R. No. 167976, January 20, 2010 ............................................... 663 Florendo, Jr. v. Coloma, 129 SCRA 304, 309-311 ............................... 248 Florendo, Jr. v. Coloma, 129 SCRA 304, 310 ...................................... 250 Flores v. Mallare-Philipps, 144 SCRA 377, 379 .................................. 224 Flores v. Office of the Ombudsman, 389 SCRA 127,132 ................... 214 Flores v. Sumaljag, 290 SCRA 568, 579-580 ......................................... 79 Fort Bonifacio Development Corp. v. Domingo,

580 SCRA 397 ...................................................................................... 72 Fortich v. Corona, 289 SCRA 624, 649 ................................................. 229 Fortune Guarantee and Insurance Corp. v.

Court of Appeals, 379 SCRA 7 ........................................................ 610 Fortune Guarantee and Insurance Corporation v.

Court of Appeals, 379 SCRA 7,19-20 ............................................. 662 Foster-Gallego v. Galang, 435 SCRA 275, 287 .................................... 562 Francel Realty Corporation v. Sycip, 469 SCRA 424 ........................... 85 Francel Realty Corporation v. Sycip, 469 SCRA 424, 431 .................. 81 Francisco Basa v. People of the Philippines,

451 SCRA 510-517 ............................................................................ 542 Francisco v. Permskul, 173 SCRA 324 ................................................. 528 Francisco v. Puno, 108 SCRA 427, 432 ................................................ 623 Freedom from Debt Coalition v. MWSS,

539 SCRA 621,635 ............................................................................ 606 French Oil Machinery Company v. Court of Appeals,

295 SCRA 462,469 .............................................................................. 87 Frisco F. San Juan v. Sandiganbayan, 561 SCRA 316,

325, citing Active Realty and Development Corporation v. Fernandez, 537 SCRA 116 ...................................... 29

Frisco San Juan v. Sandiganbayan, 561 SCRA 316, 325 .................... 29


G & G Trading Corporation v. Court of Appeals, 158 SCRA 466, 469 ......................................................................... 383

Galarosa v. Valencia, 227 SCRA 726 .................................................... 243 Gan Hock v. Court of Appeals, 197 SCRA 223, 232 ........................... 378 Garcia v. Court of Appeals, 336 SCRA 475 .......................................... 551 Garcia v. Zosa, Jr., 469 SCRA 334, 337-338 ........................................ 114 Garrucho v. Court of Appeals, 448 SCRA 165,172 ............................. 267 Gaspar v. Dorado, 15 SCRA 331, 334 ................................................... 364 Gementiza v. COMELEC, 353 SCRA 724, 730 ................................... 519 Gemperle v. Schenker, 125 Phil. 458 .................................................... 413 Geolistics-Inc. v. Catewey Electronics,

582.............................................................................................................. CRA 434,445 ...................................................................................... 661

Geonzon Vda. De Barrera v. Heirs of Vicente Legaspi, 565 SCRA 192,198 .............................................................................. 82

Globe Telecom, Inc. v. Florendo- Flores, 390 SCRA 201, 210 ........................................................................... 642

Go v. Court of Appeals, 297 SCRA 574 ................................................. 145 Go v. Rico, 488 SCRA 137,145-146 ........................................................ 279 Go v. Sunbanon, 642 SCRA 367, ..... 381, February 9, 2011 Go v. Sunbanon, 642 SCRA 367, ..... 383, February 9, 2011 Go v. Sunbanon, 642 SCRA 367, .............. February 9, 2011 Go v. Sunbanon, G.R. No. 168240, February 9, 2011 ..................... 566 Gochan v. Gochan, 372 SCRA 256, 263-264 ........................................ 264 Gochan v. Gochan, 372 SCRA 256, 264 ................................................ 183 Gojo v. Goyala, 35 SCRA 557, 563 ......................................................... 339 Golangco v. Fung, Office of the Ombudsman,

G. ................................................................................................................ . Nos. 147640-147762, October 12, 2006 ....................................... 616

Golden Sun Finance Corporation v. Albano, A.M. No. P-l1-2888, July 27, 2011 .................................................. 671

Gomez v. CA, 425 SCRA 98,106 ............................................................ 194 Gomez v. Court of Appeals, 420 SCRA 98,104 .................................... 378 Gomez v. Court of Appeals, 425 SCRA 98 .................................. 88,187 Gomez v. Court of Appeals, 425 SCRA 98,103 .................................... 193 Gomez v. Court of Appeals, 425 SCRA 98,104 ...................................... 96 Gomez v. Court of Appeals, 425 SCRA 98,105 ................. 189,190, 377 Gonzales v. CA, 151 SCRA 289 ..................................................... 164,165 Gonzales v. Rosas, 423 SCRA 288 ......................................................... 616 Gonzales v. Rosas, 423 SCRA 488, 494 ................................................ 106 Government v. Echaus, 71 Phil. 318, 320 ............................................ 651 Gozon v. Vda. De Barrameda, 11 SCRA 376, 379 .............................. 217 G t S th M iti S i C A

CASE INDEX 707

Great Southern Maritime Services Corp. v. Acuna, 452 SCRA 422, 432 ........................................................................... 639

Greater Metropolitan Manila Solid Waste Management Committee v. Jancom Environmental Corporation,

494 SCRA 280, 296 ........................................................................... 643 Greater Metropolitan Manila Solid Waste Management

Committee v. Jancom Environmental Corporation, 494 SCRA 280, 297 ........................................................................... 646

GSIS v. De Leon, 635 SCRA 321, 330, November 17, 2010 ............... 26 GSIS v. Heirs of Caballero, G.R. No. 158090,

October 4, 2010 ........................................................................ 334, 340 GSIS v. NLRC, 635 SCRA 251, 257-258,

November 17, 2010 ............................................................................. 18 GSIS v. NLRC, 635 SCRA 251, 257, November 17, 2010 ................. 301 GSIS v. Oliza, 304 SCRA 421, 426 .......... .................................................... Guanio v. Makati Shangri-La Hotel and Resort, Inc.,

641 SCRA 591, 596, February 7, 2011 .......................................... 198 Guanzon v. Arradaza, 510 SCRA 309, 312 .......................................... 374 Guanzon v. Arradaza, 510 SCRA 309, 318 citing

Gochanco v. CFI of Negros Occidental, 157 SCRA 40 ................ 396 Guevara v. BPI Securities Corporation, 498 SCRA 613 ................... 544 Guevarra v. Sandiganbayan, Fourth Division,

454 SCRA 372, 382-383 ................................................................... 524 Guiang v. Court of Appeals, 510 SCRA 568, 585 ................................. 70 Guinhawa v. People of the Philippines, 468 SCRA 278, 299 .............. 69 Gumabay v. Baralin, 77 SCRA 258 ...................................................... 362 Gumabay v. Baralin, 77 SCRA 258, 262 .............................................. 415 Gustilo v. Gustilo III, G.R. No. 175497, October 19, 2011 ............ 71, 73 H. B. Zachry Company International v. Court

of Appeals, 232 SCRA 329, 346 ...................................................... 388 Habagat Grill v. DMC-Urban Property Developer, Inc.,

454 SCRA 653, 670 ........................................................................... 114 Hamilton v. Levy, 344 SCRA 821, 828 ............ ........................................... Hamilton v. Levy, 344 SCRA 821, 829 ................................................. 390 Hanover Insurance Company v. Port Service and

Manila Railroad Company, 19 SCRA 69, 73 ................................ 294 Harold v. Aliba, 534 SCRA 178, 486 ..................................................... 548 Heirs of Antonio Pael v. Court of Appeals,

325 SCRA 341, 372 ........................................................................... 352 Heirs of Benjamin Mendoza v. Court of Appeals,

565 SCRA 506, 512-513 ................................................................... 300 Heirs of Benjamin Mendoza v. Court of Appeals,

565 SCRA 506, 512-513 ................................................................... 559


Heirs of Cabigas v. Limbaco, G.R. No. 175291, July 27, 2011 .................................................................. 594, 604, 605

Heirs of Cesar Marasigan v. Marasigan, 548 SCRA 409, 435 ....................................................... ..........................

Heirs of Conahap v. Regana, 458 SCRA 741, 748 .............................. 455 Heirs of De la Cruz v. Heirs of Cruz, 475 SCRA 743, 756 ...................63 Heirs of Dicman v. Carino, 490 SCRA 240 .......................................... 101 Heirs of Dolleton v. Fil-Estate Management, Inc.,

G.R. No. 170750, April 7, 2009 .................................................... 210 Heirs of Felicidad Canque v. Court of Appeals,

275 SCRA 741,749 ............................................................................ 533 Heirs of Ferraren v. Court of Appeals, G.R. No. 159328,

October 5, 2011 ......................................................................... 604, 608 Heirs of Francisco Retuya v. Court of Appeals,

G.R. No. 163039, April 6, 2011 .................................................... 282 Heirs of Gaudiano v. Benemerito, 516 SCRA 416, 420- 421 ...............22 Heirs of Gaudiano v. Benemerito, 516 SCRA 416, 423 ..................... 577 Heirs of Hinog v. Melicor, 455 SCRA 460 ...............................................98 Heirs of Lopez v. De Castro, 324 SCRA 591, 609 ............................... 177 Heirs of Marcelino Doronio v. Heirs of Fortunato Doronio,

541 SCRA 479 .................................................................................... 581 Heirs of Maura So v. Obliosca, 542 SCRA 406 ................................... 540 Heirs of Maura So v. Obliosca, 542 SCRA 406, 417 .................. 67, 631 Heirs of Maura So v. Obliosca, 542 SCRA 406, 417-418 ................... 633 Heirs of Maura So v. Obliosca, 542 SCRA 406, 418 ........................... 538 Heirs of Maximo Regoso v. Court of Appeals,

211 SCRA 348, 351 ........................................................................... 246 Heirs of Pedro Lopez v. de Castro, 324 SCRA 591, 609 .................... 165

Heirs of Rodolfo Crisostomo v. Rudex International Development Corporation, G.R. No. 176129,

August 24, 2011 ....................................................................................23 Heirs of Sebe v. Heirs Sevilla, G.R. No. 174497,

October 12, 2009 ....................................................................... 124,131 Heirs of Valeriano S. Concha v. Spouses Gregorio J.

Lumocso, 540 SCRA 1 .................................................. 119,120,121 Heirs of Valientes v. Ramas, 638 SCRA 444, 451,

December 15, 2010............................................................................ 427 Heirs of Wenceslao Tabia v. Court of Appeals,

516 SCRA 431, 443 ................................................................... 430, 431 Hemedez v. Court, 316 SCRA 347, 375 ................................................ 241 Herce v. Municipality of Cabuyao, 512 SCRA 332, 336 .......................12 Hernandez v. Development Bank of the Philippines,

71 SCRA 290, 293 ................................................................... 184, 186

CASE INDEX 709

Hernandez v. Rural Bank of Lucena, Inc., 81 SCRA 75, 84 ..................................................................................................................... 184 Herrera v. Barretto, 25 Phil. 245, 252 citing Colton v.

Beardsly, 38 Barb., 51 ...................................................................... 63 Herrera v. Barretto, 25 Phil. 245, 256 citing

Miller v. Rowan, 25 111., 344 ............................................................. 67 Hibberd v. Rhode and Mcmillian, 32 Phil. 476, 478 ...........................298 Hibberd v. Rhode and McMillian, 32 Phil. 476, 478-479 ........ 298, 299 Hilado v. Chavez, 438 SCRA 623, 641-642 ............................................. 73 Hilado v. Chavez, 438 SCRA 623, 641-642 ............................................. 75 Hilario v. Salvador, 457 SCRA 815, 826 .................................... 116,118 HLC Construction and Development Corporation v.

Emily Homes Subdivision Homeowners Association, 411 SCRA 504, 509 ............................................................................284

Hoechst, Inc. v. Torres, 83 SCRA 297 ....................................................173 Hortencia Bino/ Hortencia Starke, Inc. v. Cuenca,

456 SCRA 300, 309 ............................................................................533 Huibonhoa v. Concepcion, 497 SCRA 562, 569-570 ........ 273, 276, 277 Hyatt Elevators and Escalators v. Cathedral Heights

Building Complex Association, 636 SCRA 401, 405-406, December 1, 2010 ................................................... 605, 608

Ibanes v. Roman Catholic Church, 12 Phil. 227, 241 .........................255 Ignacio v. CFI ofBulacan, 42 SCRA 89, 95 ............................................. 74 Ignacio v. Hilarion, 76 Phil. 605 .............................................................648 Imani v. Metropolitan Bank & Trust Company,

635 SCRA 357, 365, November 17, 2010 .......................................678 Imani v. Metropolitan Bank & Trust Company,

635 SCRA 357, 371, November 17, 2010 .......................................581 Imperial Textile Mills v. Court of Appeals, 183 SCRA 584 ...............298 Imperial v. Hardy, La, 302 So.2d 5, 7 ...................................................... 86 In Re Estate of Johnson, 39 Phil. 156, 162 ...........................................190 In the Matter to Declare in Contempt of Court

Hon. Simeon Datumanong, 497 SCRA 626, 636-637 ...................... 2 Inchausti v. De Leon, 24 Phil. 224, 226 ..................................................... 2 Industrial Finance Corp. v. Apostol, 177 SCRA 521, 524 ..................218 Industrial Timber Corporation v. Ababon, 480 SCRA 171,

181-182 citing Industrial Timber Corporation v. NLRC, 233 SCRA 597 .......................................................................540

Infante v. Aran Builders, Inc., 531 SCRA 123,129-130 ......................657 Interlining Corporation v. Philippine Trust Company,

378 SCRA 521, 525 ............................................................................446 I t ti l C t i T i l S i I C t


International Corporate Bank, Inc. v. Court of Appeals, G.R. No. 129910, September 5, 2006 ............................................. 612

International School of Manila v. Court of Appeals, 309 SCRA 474, 485 ........................................................................... 665

International School, Inc. Manila v. Court of Appeals, 309 SCRA 474, 482 ........................................................................... 662

International School, Inc. Manila v. Court of Appeals, 309 SCRA 474, 483 ........................................................................... 664

Intramuros Club, Inc. v. Court of Appeals, 341 SCRA 90, 105 ............................................................................. 661

Intramuros Club, Inc. v. Philippine Tourism Authority, 341 SCRA 90,107 .............................................................................. 664

Intramuros Tennis Club, Inc. v. Court of Appeals, 341 SCRA 90, 107 ................................................................... 662, 666

Intramuros Tennis Club, Inc. v. Philippine Tourism Authority, 341 SCRA 90,107 citing Yasuda v.

Court of Appeals, 330 SCRA 385, Bell Carpets International Trading Corporation v. Court of Appeals, 185 SCRA 35 ...................................................................................... 663

Intramuros Tennis Club, Inc. v. Philippine Tourism Authority, 341 SCRA 90, 107 ................................................. 664, 665

Islamic DaWah Council of the Philippines v. Court of Appeals, 178 SCRA 178,186 ............................................ 633

J.R. Blanco v. Quasha, 318 SCRA 373, 382 ......................................... 100 Jalandoni v. PNB, 108 SCRA 102 ......................................................... 651 Jarantilla v. Jarantilla, 636 SCRA 299, 308,

December 1, 2010 .............................................................................. 604 Jarantilla v. Jarantilla, 636 SCRA, 299, 309-310,

December 1, 2010 .............................................................................. 608 Javellana v. Presiding Judge, RTC Branch 30,

443, SCRA 497, 506 ............................................................................ 73 Jehan Shipping Corporation v. National Food

Authority, 477 SCRA 781, 788 ....................................................... 427 Johnlo Trading Co. v. Flores, 88 Phil. 741, 743 ................................... 376 Jose v. Boyon, 414 SCRA 216, 222 ............................................... 390, 392 Jose v. Boyon, 414 SCRA 216, 223 ........................................................ 395 Jose v. Boyon, 414 SCRA 216, 224 ............................................... 399, 405 Jose v. Boyon, 414 SCRA 216, 225 ........................................................ 190 Joson v. Torres, 290 SCRA 279, 299 ..................................................... 271 Juaban v. Espina, 548 SCRA 588 .......................................................... 279 Juaban v. Espina, 548 SCRA 588, 605-606 ......................................... 287 Judith Yu v. Samson- Tatad, G.R. No. 170979,

February 9, 2011 ............................................................................... 566

CASE INDEX 711

Jugador v. De Vera, 94 Phil. 704 ........................................................... 554 Julian v. Development Bank of the Philippines,

G.R. No. 174193, December 7, 2011 .............................................. 310 Junson v. Martinez, 405 SCRA 390 ...................................................... 164 Katigbak v. Sandiganbayan, 405 SCRA 558, 572 .............................. 519 Kawasaki Port Service Corporation v. Amores,

199 SCRA 230, 237 ................................................................... 191, 407 KEPCO Philippines Corporation v. Commissioner of

Internal Revenue, 636 SCRA 166, 174, November 24, 2010 ................................................................... 609, 610

Kilosbayan, Inc. v. Morato, 246 SCRA 540, 562 ................................. 236 Korea Technologies Co., Ltd. v. Lerma, 542 SCRA 1,17,

January 7, 2008 ................................................................................. 340 Kuizon v. Desierto, 354 SCRA 158 ........................................................ 618 La Mallorca v. Court of Appeals, 17 SCRA 739, 744-745 .................. 294 La Naval Drug Corporation v. Court of Appeals,

236 SCRA 78 ........................................................................................ 91 La Salette College v. Pilotin, (463 Phil. 785 [2003]) ........................... 308 La Tondena Distillers, Inc. v. Court of Appeals,

209 SCRA 553, 573-574 ................................................................... 340 La’o v. Republic, 479 SCRA 439, 446 ............................................ 83,177 Labastida v. Court of Appeals, 287 SCRA 662, 671 ........................... 200 Lacson Hermanas, Inc. v. Heirs of Ignacio,

462 SCRA 290, 294 ............................................. .................................... Ladanga v. Aseneta, 471 SCRA 381, 388-389 ..................................... 534 Landbank of the Phils, v. CA, 409 SCRA 455, 480-481 ..................... 636 Landbank of the Phils, v. Court of Appeals,

409 SCRA 455, 479 ........................................................................... 637 Langkaan Realty Development, Inc. v. United Coconut

Planters Bank, 347 SCRA 542, 555-556 ....................................... 172 Lao v. King, 500 SCRA 280, 297 ........................................................... 646 Lao v. Mencias, 21 SCRA 1021,1024 .................................................... 662 Lapu-lapu Development and Housing Corporation v.

Group Management Corporation, 388 SCRA 493, 508 citing People v. Woolcock, 244 SCRA 235 ............................... 34

Laresma v. Abellana, 442 SCRA 156,169-173 .................................... 130 Laus v. Court of Appeals, 219 SCRA 688 ........................... 391, 392, 393 Laus v. Court of Appeals, G.R. No. 101256,

March 8,1993 ..................................................................................... 327 Lavina v. Court of Appeals, 171 SCRA 691, 702 ............................. 245 Lawas v. Court of Appeals, 146 SCRA 173,176 .................................. 245 Lawas v. Court of Appeals, 146 SCRA 173,178 .................................. 247


Lawin Security Services v. NLRC, and Bristol Laboratories Employees’ Association-DFA v. NLRC ..................... 8

Leachon v. Pascua, A.M. No. P-ll- 2972, September 28, 2011 ......................................................................... 669

Lee v. Romillo, 161 SCRA 589............................................................... 230 Ley Construction and Development Corporation v. Union

Bank of the Philippines, 334 SCRA 443 ...................................... 550 Leynes v. Former Tenth Division of the Court of Appeals,

G.R. No. 154462, January 19, 2011 .............................................. 594 Lichauco v. Tan Pho, 51 Phil. 682 ........................................................ 546 Liga ng mga Barangay National v. Atienza,

420 SCRA 562, 572 ............................................................................. 98 Light Rail Transit Authority v. Court of Appeals,

444 SCRA 125,136 ........................................................................... 525 Ligon v. Court of Appeals, 294 SCRA 73, 84-85 ................................. 214 Lim Tan Hu v. Ramolete, 66 SCRA 425, 449-450 ............................. 245 Lim v. Pacquing, 236 SCRA 211, 219 ..................................................... 62 Lim v. Vianzon, 497 SCRA 482 ................................................................ 68 Lim v. Vianzon, 497 SCRA 482, 491 ....... ................................................... Lim v. Vianzon, 497 SCRA 482, 492 ................................................ 32, 33 Lim v. Vianzon, G.R. No. 137187, August 3, 2006 ............................ 276 Lina v. Court of Appeals, 135 SCRA 637, 642 .................................... 326 Litonjua v. Court of Appeals, 80 SCRA 246, 251 ............................... 392 Lizares v. Caluag, 4 SCRA 746, 748 .................................................... 184 Loadmasters Customs Services, Inc. v. Glodel Brokerage

Corporation, G.R. No. 179446, January 10, 2011 ...................... 344 Lopez v. City of Manila, 303 SCRA 448 ............................................ 291 Lopez v. Compania de Seguros, 16 SCRA 855, 859 ........................... 179 Lopez v. Liboro (81 Phil. 431) ................................................................ 516 Lorbes v. Court of Appeals, 351 SCRA 716, 724 ................................ 327 Lorbes v. Court of Appeals, 351 SCRA 716, 724-725 .................... 19, 20 Lorbes v. Court of Appeals, 351 SCRA 716, 729-730 ........................ 215 Lorbes v. Court of Appeals, 351 SCRA 716, 730 .............. 263, 264, 267 Lou v. Siapno, 335 SCRA 181 ............................................................... 660 Lou v. Siapno, 335 SCRA 181,187 ........................................................ 643 Lozano v. Balesteros, 195 SCRA 681, 690 .......................................... 243 Lucman v. Malawi, 511 SCRA 268,278-281 ....................................... 237 Luna v. Carandang, 26 SCRA 306, 309 .................................................. 70 Luzon Development Bank v. Conquilla,

470 SCRA 533, 546-547 .................................................................. 210 Luzon Development Bank v. Conquilla,

470 SCRA 533, 549-544 .................................................................. 543

CASE INDEX 713

Luzon Surety Co., Inc. v. IAC, G.R. No. 72645, June 30,1987 .......................................................................................653

M.A. Santander Construction, Inc. v. Villanueva, 441 SCRA 525, 530 ............................................................................309

Mabayo Farms, Inc. v. Court of Appeals, 386 SCRA 110, 116 ............................................................................351

Macabingkil v. PHHC, 72 SCRA 326, 343 .......................................641 Macahilig v. Heirs of Gracia M. Magalit,

344 SCRA 838,848 .............................................................................522 Macalalag v. Ombudsman, 424 SCRA 741, 744- 745 .........................635 Maceda v. Court of Appeals, 176 SCRA 440, 444

citing Agustin v. Bacalan, 135 SCRA 340 ......................................335 Machete v. Court of Appeals, 250 SCRA 176 ......................................... 78 Macias v. Lim, 431 SCRA 20, 40 ............................................................658 Mactan-Cebu International Airport Authority v. Heirs

of Mifioza, 641 SCRA 520, 528 .........................................................290 Mactan-Cebu International Airport Authority v.

Heirs of Mifioza, G.R. No. 186045, February 2, 2011..... ..................................... 347, 348, 349, 350, 352

Magbanua v. Junsay, 515 SCRA 419, 436-437 ....................................204 Magdalena Estate v. Nieto, 125 SCRA 758 ..........................................195 Magdalena Estate v. Nieto, 125 SCRA 758, 761 .................................401 Magdalena Estate, Inc. v. Nieto, 125 SCRA 758, 761 ........................402 Magno v. Velasco-Jacoba, 475 SCRA 584 .............................................159 Mago v. Court of Appeals, 303 SCRA 600, 608-609 ............................350 Magpili v. De Jesus, 474 SCRA 366, 372 ................................................ 73 MAKAMANGGAGAWA v. Associated Anglo-American

Corporation, 546 SCRA 124-127 ....................................................... 25 Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234, 245 ................... 10 Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234, 246-247........ 565 Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234, 249 .................578 Mallari v. Arcega, 379 SCRA 537, 550 ..................................................533 Manacop v. Equitable-PCI Bank, 468 SCRA 256, 270 .......................576 Manaloto v. Veloso III, 532 SCRA 347, 361, October 6, 2010 ......... 566 Manaloto v. Veloso III, 632 SCRA 347, 362,

G.R. No. 171365, October 6, 2010 ......................................... 205, 206 Manaloto v. Veloso III, G.R. No. 171365, October 6, 2010 .................197 Manaloto v. Veloso, 632 SCRA 347, 359- 361 ......................................565 Mancenido v. Court of Appeals, 330 SCRA 419, 427 ..........................661 Manchester Development Corporation v.

Court of Appeals, 149 SCRA 562, 569 ............................................307 Manchester v. Court of Appeals (233 Phil. 579 [1987]) ......................308


Mangahas v. Paredes, 515 SCRA 709, 715 ........................................... 32 Mangahas v. Paredes, 515 SCRA 709, 718 ......................................... 643 Mangila v. Court of Appeals, 387 SCRA 162, 174-175 ...................... 171 Manila Banking Corporation v. University of

Baguio, Inc., 516 SCRA 379-380 .................................................... 207 Manila Electric Company v. Philippine Consumers

Foundation, Inc., 374 SCRA 262, 277 ........................................... 533 Manila International Airport Authority v. Olongapo

Maintenance Services, Inc., 543 SCRA 269, 301 ......................... 274 Manliclic v. Calaunan, 512 SCRA 642, 662-553 ................................. 199 Manotoc v. CA, 499 SCRA 21 ......................................................... 393, 394 Manotoc v. Court of Appeals, 499 SCRA 21 ................................ 395, 396 Manotoc v. Court of Appeals, 499 SCRA 21, 33 .................................. 379 Manotok IV v. Heirs of Barque, 574 SCRA 468, 509 ........................... 13 Manuel v. Escalante, G.R. No. 134141, August 13, 2002 .................. 673 Manzanal v. Ilusorio, 636 SCRA 563, 570, December 6, 2010 ........ 197 Marchadesch v. Vda. De Yepes, 442 SCRA 254, 262 ......................... 532 Marcos v. Pamintuan, 639 SCRA 658, 665,

January 18, 2011............................................................................... 539 Maricalum Mining Corporation v. NLRC,

298 SCRA 378, 387 .......................................................................... 657 Marikina Development Corporation v. Flojo,

251 SCRA 87,93 ........................................................................ 370, 560 Marinduque Mining and Industrial Corporation v.

Court of Appeals, 567 SCRA 483, 491-492 ................................... 302 Marinduque Mining and Industrial Corporation v.

Court of Appeals, 567 SCRA 483, 493-494 ................................... 586 Mariscal v. Court of Appeals, 311 SCRA 51, 56.................................. 216 Marquez and Gutierrez Lora v. Varela, 92 Phil. 373 ......................... 261 Marquez v. Court of Appeals, G.R. No. 116689,

April 3, 2000 ....................................................................................... 611 Mason v. Court of Appeals, 413 SCRA 303, 310- 311 ........................ 386 Mathay v. Consolidated Bank & Trust Co.,

58 SCRA 559, 571 ............................................................................. 254 Mathay v. Consolidated Bank & Trust Company,

58 SCRA 559 ...................................................................................... 254 Mathay v. Consolidated Bank and Trust Company,

58 SCRA 559, 571- 572 .................................................................... 256 Mayon Hotel and Restaurant v. Adana, 458 SCRA 609, 629 ...............5 Mayor Rhustom Dagadag v. Michael C. Tongnawa,

450 SCRA 437, 443-444 ................................................................... 229 Megan Sugar Corporation v. RTC of Iloilo, Branch 68,

G. ................................................................................................................. . No. 170352, June 1, 2011................................................................. 84

CASE INDEX 7X5

Melgar v. Buenviaje, 179 SCRA 196, 201 ............................................. 250 Meliton v. Court of Appeals, 216 SCRA 485, 493 ................................ 335 Mendoza v. Doroni, 481 SCRA 41, 52-53 .............................................. 673 Mendoza v. United Coconut Planters Bank, Inc.,

641 SCRA 333, 345, February 2, 2011 ........................................... 576 Meneses v. Venturozo, G.R. No. 172196, October 19, 2011 ............... 606 Mercader v. DBP, 332 SCRA 82 ............................................................. 459 Mercado v. Court of Appeals, 569 SCRA 503, 508 .............................. 333 Mercury Group of Companies v. Home Development

Mutual Fund, 541 SCRA 211 ........................................................544 Mesina v. Meer, 383 SCRA 625, 634 ...................................................629 Metals Engineering Resources Corporation v.

Court of Appeals, 203 SCRA 273, 285 ................ .........................340 Micro Sales Operation Network v. NLRC, 472 SCRA 328 ..............270 Miguel v. JCT Group, Inc., 453 SCRA 529, 541 .................................523 Millare v. Montero, 246 SCRA 1...........................................................277 Millenium Erectors Corporation v. Magallanes,

634 SCRA 708, 713-714, November 15, 2010 .............................5, 6 Millenium Industrial Corporation v. Tan,

326 SCRA 563, 569-571 ..................................................................384 Milwaukee Industries v. Court of Tax Appeals,

636 SCRA 70, 77, November 24, 2010 ........................................ 512 Miranda v. Bera, 435 SCRA 532, 540 ...................................................... 73 Miranda v. Court of Appeals, 326 SCRA 278, 282-283 ................... 390 Miranda v. Court of Appeals, 326 SCRA 278, 283 ........................... 390 Misamis Occidental II Cooperative, Inc. v. David,

468 SCRA 63, 71 ............................................................ 209, 210, 426 Mitra v. Commission on Elections, G.R. No. 191938,

July 2, 2010 .......................................................................................621 Modesto v. Urbina, 633 SCRA 383, 391, October 18, 2010 ..............117 Monarch Insurance v. Court of Appeals, 333 SCRA 71, 93 .............324 Mondonedo v. Court of Appeals, 252 SCRA 28, 30 ...........................449 Montalban v. Maximo, 22 SCRA 1070,1078-1079 .............................. 391 Montalban v. Maximo, 22 SCRA 1070, 1079 ....................................... 397 Montalban v. Maximo, 22 SCRA 1070,1080 ........................................ 404 Montemayor v. Millora, G.R. No. 168251, July 27, 2011 .................537 Montes v. Court of Appeals, 489 SCRA 432, 440 ............................. 277 Montes v. Court of Appeals, G.R. No. 143797, May 4, 2006 ............276 Montoya v. Escayo, et al., 171 SCRA 442 ...........................................161 Monzon Spouses Relova v. Addio Properties, Inc.,

565 SCRA 514, 524 ..........................................................................319 Morales v. Court of Appeals, 461 SCRA 34, 48 ..................................525


Muller v. Muller, 235 Cal. App. 2d, 341, 45 Cal. Rptr. 182, 184 ...................................................................................... 92

Multi-Trans Agency Phils., Inc. v. Oriental Assurance Corporation, 590 SCRA 675, 689-691.............................................. 24

Multinational v. Court of Appeals, 203 SCRA 104 ............................. 277 Munoz v. People, 548 SCRA 473, 481 ..................................................... 18 Munoz v. Yabut, Jr., G.R. No. 142676, June 6, 2011 ................ 187, 191

Munoz v. Yabut, Jr., G.R. No. 142676, June 6, 2011 citing Heirs of Eugenio Lopez, Sr. v. Enriquez,

449 SCRA 173.................................................................................... 191 Mutia v. Pacariem, 494 SCRA 448, 453 ............................................... 197 MWSS v. Court of Appeals, 297 SCRA 287, 308 ................................ 238 Nagkakaisang Mamumuo sa PICOP Resources, Inc. v.

Court of Appeals, G.R. Nos. 148839-40, November 2, 2006 ............................................................................. 612

Naguiat v. NLRC, 269 SCRA 564, 577 ................................................. 523 Narra Integrated Corporation v. Court of Appeals,

344 SCRA 781, 786-787 ................................................................... 554 National Mines and Allied Workers Union,

539 SCRA 548, 554-555 ................................................................... 356 National Power Corporation v. Adiong,

A.M. No. RTJ-07-2060, July 27, 2011 .................................. 447, 664 National Power Corporation v. De la Cruz,

514 SCRA 56 ...................................................................................... 101 National Steel Corporation v. Court of Appeals,

302 SCRA 522, 529-530 ................................................................... 183 National Steel Corporation v. Court of Appeals,

388 SCRA 85, 91-92 ......................................................................... 286 Natividad v. MTRCB, 540 SCRA 124,135 ........................................... 607 Nava v. National Bureau of Investigation,

455 SCRA 377, 389 ........................................................................... 616 Navale v. Court of Appeals, 253 SCRA 705, 708-709........................... 87 Navarro v. Vda. De Taroma, 478 SCRA 336, 344-345 ....................... 354

Nazareno v. Court of Appeals, 343 SCRA 637,653 citing Limjoco v. Intestate Estate of Fragante,

80 Phil. 776 ....................................................................................... 227 Nazareno v. Court of Appeals, 378 SCRA 28, 34-35 .......................... 532 Neri v. De la Pena, 457 SCRA 538, 546 ................................................ 370 Nestle Philippines, Inc. v. FY Sons, Inc.,

489 SCRA 624, 634 ........................................................................... 307 Nestle Philippines, Inc. v. Uniwide Sales, Inc.,

634 SCRA 232, 240, October 20, 2010 ............................................. 77

CASE INDEX 717

Newsweek, Inc. v. Intermediate Appellate Court, 142 SCRA 171,176-177 .................................................................... 256

Neypes v. Court of Appeals, 469 SCRA 633 ............................ 561, 562, 564, 565, 566, 568, 574

Neypes v. Court of Appeals, 469 SCRA 633, 643-644 .......................... 10 Neypes v. Court of Appeals, G.R. No. 141524,

September 14, 2005 .............................................................................. 3 Nocum v. Tan, 470 SCRA 639, 645 ....................................................... 165 Nocum v. Tan, 470 SCRA 639, 648 ....................................................... 177 Northwest Airlines, Inc. v. Court of Appeals,

284 SCRA 408,416 ............................................................................ 519 Novino v. Court of Appeals, 8 SCRA 279, 280 .................................... 526 Nudo v. Caguioa, G.R. No. 176906, August 4, 2009 ........................... 631 Office of the Ombudsman v. Delijero, Jr.,

634 SCRA 135,148, October 20, 2010 .............................................. 84 Office of the Ombudsman v. Lazaro- Baldazo,

514 SCRA 141,144 ............................................................................ 100 Office of the Ombudsman v. Samaniego, 564 SCRA 567 ................. 347 Office of the Ombudsman v. Samaniego,

564 SCRA 567, 577 ........................................................................... 350 Office of the Ombudsman v. Tongson, 499 SCRA 567, 584 .............. 100 Oil and Natural Gas Commission v. Court of Appeals,

315 SCRA 296, 307-308 ................................................................... 529 Oliveros v. Sison, 548 SCRA 265, 271 .................................................. 289 Ombudsman v. Parungao, G.R. No. 184263,

February 16, 2011 ............................................................................. 620 Ong Chia Kwan v. Court of Appeals,

345 SCRA 586,589-580 .................................................................... 528 Ong Chia v. Republic, 328 SCRA 749, 756 .............................................. 6 Ong Peng v. Custodio, 1 SCRA 780, 783 .............................................. 415 Ong Peng v. Custodio, 1 SCRA 780, 784-785 ...................................... 355 Ongv. Bognalbal, G.R. No. 149140, September 12, 2006 ................. 610 Onquit v. Binamira-Parcia, 297 SCRA 354, 362 .................................. 75 Operators, Inc. v. American Biscuit Company,

154 SCRA 738 .................................................................................... 242 Oposa v. Factoran, 224 SCRA 792, 802-803 ........................................ 257 Ortigas & Company Limited Partnership v. Ruiz,

148 SCRA 326, 339 citing Berses v. Villanueva, 25 Phil. 473256 Pablo-Gualberto v. Gualberto V, 461 SCRA 450,469 ......................... 523 Pabon v. NLRC, 296 SCRA 7,14 ............................................................ 384 Pace v. Hillcrest Motor Co., 161 Cal. Rptr. 663,

664 Ct. App. 1980 .............................................................................. 150


Pacific Consultants v. Schonfeld, 516 SCRA 209, 229 ....................... 170 Pacific Consultants, International Asia, Inc. v.

Schonfeld, 516 SCRA 209, 229 ........................................................ 172 Pacioles, Jr. v. Chuatoco-Ching, 466 SCRA 90, 97-98 ....................... 139 Pacquing v. Coca-Cola Bottlers, Inc. 543 SCRA 344 .......................... 284 Pacquing v. Coca-Cola Philippines, Inc.,

543 SCRA 344, 353-344 ...................................................................... 25 Paeste v. Jaurigue, 94 Phil. 179, 181 .................................................... 355 Pagalaran v. Bal-latan, 13 Phil. 135,140 .............................................. 381 Page-Tenorio v. Tenorio, 443 SCRA 560, 569 ...................................... 544 Pallada v. Regional Trial Court of Kalibo, Aklan,

Br. I, 304 SCRA 440, 446 ........................................................ 643, 644 Palmer v. Glover, 73 Ind., 529 ................................................................ 657 Paloma v. Mora, 470 SCRA 711 ............................................................... 78 Paluwagan ng Bayan Savings Bank v. King,

G. ................................................................................................................ . No. 78252, April 12,1989,172 SCRA 60 ....................................... 399

Pamintuan v. Tiglao, 53 Phil. 1,4 ............................................................ 79 Pampanga Sugar Development Company, Inc. v.

NLRC, 272 SCRA 737, 743 .............................................................. 271 Pamplona Plantation Co. v. Tinghil, 450 SCRA 421, 433 ................. 239 Pangilinan v. Court of Appeals, 321 SCRA 51, 59 ........................ 81, 84 Pantaleon v. Asuncion, 105 Phil. 761, 765 ........................ 195, 401, 402 Pantranco North Express, Inc. v. Buncan,

453 SCRA 482,489 .............................................................................. Ill Panuncillo v. CAP, Phils., Inc., 515 SCRA 323, 341 ............................... 5 Papunan v. DARAB, 396 SCRA 196, 204 .............................................. 69 Paradise Sauna Massage Corp. v. Ng, 181 SCRA 719, 727 .............. 415 Paramount Insurance Corp. v. A.C. Ordonez Corporation,

561 SCRA 327, 334 ................................... ....................................... 326 Paramount Insurance Corp. v. A.C. Ordonez Corporation,

561 SCRA 327, 333 ........................................................................... 388 Pascua v. Heirs of Segundo Simeon, 161 SCRA 1, 5 .......................... 674 Pascual & Santos, Inc. v. The Member of the Tramo

Wakas Neighborhood Association, Inc., 442 SCRA 439,447 ............................................................................ 285

Pascual v. Pascual, 73 Phil. 561, 562 .................................................... 185 PCI Bank v. Alejandro, 533 SCRA 738 ....................................... 88, 378 PCI Leasing and Finance, Inc. v. Go Ko, 454 SCRA 586, 592 .............. 2 PCIB v. Alejandro, 533 SCRA 738, 754 ................................................ 404 Pedrosa v. Hill, 327 Phil. 153,158 [1996] ............................................. 308 Peltan Development, Inc. v. Court of Appeals,

270 SCRA 82 91 424

CASE INDEX 719

Peltan Development, Inc. v. Court of Appeals, 270 SCRA 82,92 ................................................................................. 533

Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 .......................................... 86 People ex rel. Herndon v. Opekl, 188 111 194,

58 NE 996, cited by Black’s, 5th Ed .................................................. 40 People v. Azarraga, G.R. Nos. 187117 and 187127,

October 12, 2011 ................................................................................... 32 People v. Carlos, 78 Phil. 535, 543 ........................................................... 40 People v. Cawaling, 293 SCRA 267, 288 ................................................. 80 People v. De la Torre, 567 SCRA 651 citing People v.

Montinola, 543 SCRA 412 ................................................................ 583 People v. Derpo, 168 SCRA 447, 455 ..................................................... 523 People v. Espinosa, G.R. Nos. 153714-20,

August 15, 2003 .................................................................................. 615 People v. Flores, 481 SCRA 451, 453 ................................................. 603 People v. Gabriel, 510 SCRA 197, 202 .......................................... 253, 299 People v. Godoy, 243 SCRA 64, 78 ......................................................... 179 People v. Juan Tuvera, 516 SCRA 113,131-132 .................................. 208 People v. Mamaril, 632 SCRA 369, 379, October 6, 2010 .................. 581 People v. Romualdez, 587 SCRA 123,132, 137 ...................................... 12 People v. Tumaru, 319 SCRA 515, 528 ................................................. 531 Pepsi-Cola Products, Inc. v. Pagdanganan,

504 SCRA 549, 564 ............................................................................ 535 Peralta-Labrador v. Bugarin, 468 SCRA 308, 313 ................................ 70 Perez v. Court of Appeals, 464 SCRA 89,107 ....................................... 543 Periquet, Jr. v. Intermediate Appellate Court,

238 SCRA 697, 713 ............................................................................ 231 Perkins v. Dizon, 69 Phil. 186, 189 ............................................... 408, 409 Perkins v. Haywood, 31 N. E., 670, 672 ................................................ 547 Perkins v. Haywood, 31 N.E., 670 672 .................................................. 546 Pesane Animas Mongao v. Pryce Properties Corp.,

467 SCRA 201, 214 ............................................................................ 318 Phil. Pharmawealth, Inc. v. Pfizer, Inc.,

635 SCRA 140,154, November 17, 2010 ................................. 78, 288 Philippine Amusement and Gaming Corporation

[PAGCOR] v. Lopez, 474 SCRA 76, 92........................................... 307 Philippine Bank of Communications v. Go,

642 SCRA 693, 706, February 14, 2011 ......................................... 266 Philippine Bank of Communications v. Go, 642 SCRA 693,

707, February 14, 2011 citing Aquintey v. Tibong, 511 SCRA 414, 432.... ........................................................................ 312

Philippine Bank of Communications v. Go, 642 SCRA 693, 707, February 14, 2011 ......................................... 313


Philippine Bank of Communications v. Go, 642 SCRA, 693, 705-706, February 14, 2011 .............................. 551

Philippine Bank of Communications v. Trazo, 500 SCRA 242, 247-248 ................................................................... 172

Philippine Banking Corporation v. Tensuan, 230 SCRA 413, 420 ........................................................................... 170

Philippine Business Bank v. Chua, 634 SCRA 635, 648, November 15, 2010 ........................................................................... 535

Philippine Commercial International Bank v. Alejandro, 533 SCRA 738, 752 ........................................................................... 414

Philippine Commercial International Bank v. Alejandro, 533 SCRA 738, 752-754 ................................................................... 415

Philippine Crop Corporation v. Court of Appeals, 567 SCRA 1,10 ................................................................................... 215

Philippine Export and Foreign Loan Guarantee Corporation v. Amalgamated Management and Development Corporation, G.R. No. 177729, September 28, 2011 .......................................................................... 455

Philippine Export and Foreign Loan Guarantee Corporation v. Philippine Infrastructures, Inc., 419 SCRA 6,14-15 ............................................................................. 358

Philippine Journalists, Inc. v. NLRC, 501 SCRA 75 .......................... 548 Philippine National Bank v. Bondoc,

14 SCRA 770, 770-772 ..................................................................... 653 Philippine National Bank v. Bondoc, 14 SCRA 770, 772 .................. 654 Philippine National Bank v. Court of Appeals,

514 SCRA 569, 582 citing Navoa v. Court of Appeals, 251 SCRA 545 .................................................................................... 196

Philippine National Bank v. Paneda, 515 SCRA 639, 649 citing Marina Properties Corporation v. Court of Appeals, 294 SCRA 273 ................................................... 561

Philippine National Construction Corporation v. Court of Appeals, 514 SCRA 569, 576 ........................................... 196

Philippine National Oil Company v. Court of Appeals, 457 SCRA 32,104 .............................................................................. 580

Philippine Ports Authority v. William Gothong & Aboitiz [WG&A], Inc., 542 SCRA 514, 519 ................................... 357

Philippine Reconstruction Corporation, Inc. v. Aparente, 45 SCRA 217, 222 ............................................................................. 655

Philippine Sinter Corporation v. Cagayan Electric Power and Light Co., Inc., 381 SCRA 582, 591 ...........................................34

Philippine Surety and Insurance Co. v. Zabal, 21 SCRA 682, 685 ........................................................................... 680

CASE INDEX 721

Philippine Trust Company v. Court of Appeals, 320 SCRA 719, 729 ............................................................................. 232

Philippine Veterans Bank v. Intermediate Appellate Court, 78 SCRA 645 .......................................................................... 648

Phillips Seafoods v. The Board of Investments, 578 SCRA 69, 76 ................................................................................. 576

Philville v. Javier, 477 SCRA 533, 537 ................................................... 427 Pilapil v. Heirs of Briones, 514 SCRA 197, 211 ...................................... 16 Pilipino Tel. Corp. v. NTC, 410 SCRA 828 ............................................ 638 PILTEL v. NTC, 410 SCRA 82, 88 ......................................................... 637 Pineda v. Heirs of Eliseo Guevara, 515 SCRA 627, 634 ...................... 580 Pineda v. Heirs of Eliseo Guevara, 515 SCRA 627, 636 ...................... 429 Pineda v. Heirs of Eliseo Guevara, 515 SCRA 627, 637-638 ............ 553 Pinga v. Heirs of Santiago, 494 SCRA 393, 398 ..................................... 10 Pinga v. Heirs of Santiago, 494 SCRA 393, 413 ................................... 343 Pinga v. Heirs of Santiago, G.R. No. 170354,

June 30, 2006 ........................................................................... 441,443 Pioneer Insurance & Surety Corporation v. Hontanosas,

78 SCRA 447,461 ................................................................................ 448 Pison-Arceo Agricultural and Development Corporation v.

National Labor Relations Commission, 279 SCRA 312, 322 ............................................................................. 384

Planters Products, Inc. v. Court of Appeals, 317 SCRA 195, 203 ............................................................................. 665

Planters Products, Inc. v. Court of Appeals, 317 SCRA 195, 204 ............................................................................ 661

Plasabas v. Court of Appeals, 582 SCRA 686, 692-693 ....................... 239 Plata v. Torres, 570 SCRA 12,17-18 ....................................................... 531 PNB v. Bondoc ................................................................................ 653, 654 PNB v. Court of Appeals, 291 SCRA 271, 276 ...................................... 211 PNB v. Deloso, 32 SCRA 266 ........................................................ 653, 654 Polanco v. Cruz, 579 SCRA 489, 498 ........................................................ 14 Polomolok Water District v. Polomolok General

Consumers Association, Inc., 636 SCRA 647, 652-653 ................. 136 Polytrade Corporation v. Blanco, 30 SCRA 187,191 ............................ 169 Ponciano v. Parentela, 331 SCRA 605, 611 ........................................... 339 Primicias v. Ocampo, 93 Phil. 446, 452 ...................................................... 1 Prince Transport, Inc. v. Garcia, 639 SCRA 312,323-324,

January 12, 2011 ................................................................................ 615 Prince Transport, Inc. v. Garcia, 639 SCRA 312, 324,

January 12, 2011 ................................................................................ 107 Prince Transport, Inc. v. Garcia, 639 SCRA 312, 330,

January 12, 2011 ................................................................................ 267


Prince Transport, Inc., v. Garcia, 639 SCRA 312, 326, January 12, 2011 ............................................................................... 280

Prince Transport, Inc., v. Garcia, 639 SCRA 312, 327, January 12, 2011 ................................................................................. 25

Pro-Line Sports Center, Inc. v. Court of Appeals, 281 SCRA 162 .................................................................................... 332

Progressive Development Corporation v. Court of Appeals, 301 SCRA 637, 647 ........................................... 611

Progressive Development Corporation, Inc. v. Court of Appeals, 301 SCRA 637, 652-653 .................................... 216

Proton Pilipinas Corporation v. Banque National de Paris, 460 SCRA 260, 276 ........................................................... 307

Public Estates Authority v. Caoibes, 371 Phil. 688 ............................. 303 Purcon v. MRM Philippines, Inc., 566 SCRA 645, 653-654 .............. 627 Purok Bagong Silangan v. Yuipco, 489 SCRA 382, 397 ....................... 32 Quadra v. Court of Appeals, 497 SCRA 221 ......................................... 215 Quarto v. Ombudsman Marcelo, G.R. No. 169042,

October 5, 2011 .................................................................................. 619 Que v. Court of Appeals, 339 SCRA 505, 510 ........................................ 69 Quelnan v. VHF Phil., 433 SCRA 631 ................................................... 562 Quelnan v. VHF Philippines, 470 SCRA 73, 80 ......................... 622, 625 Quezon City v. ABS-CBN Broadcasting Corporation,

567 SCRA 496, 508-509.................................................................... 601 Quezon City v. ABS-CBN Broadcasting Corporation,

G. ................................................................................................................ . No. 166408, October 6, 2008 ......................................................... 594, 595 ............................................................................................................

Quinagoran v. Court of Appeals, 531 SCRA 104,112-114 .................. 116 Quinagoran v. Court of Appeals, 531 SCRA 104,113-114 .................. 130 R. Transport Corporation v. Court of Appeals,

241 SCRA 77,83 ............................................................................... 384 Raboca v. Velez, 341 SCRA 543.............................................................. 551 Radiowealth Finance Corpo- ration v. Del Rosario,

335 SCRA 288 ................................................................................... 520 Ram’s Studio and Photographic Equipment, Inc. v.

Court of Appeals, 346 SCRA 691, 697 ........................................... 539 Ramos v. Alvendia, 568 SCRA 239, 249 ................................................. 16 Ramos v. Combong, 473 SCRA 499, 504............................................... 631 Ramos v. Spouses Lavendia, 568 SCRA 239, 247 ............................... 453 Rava Development Corporation v. Court of Appeals,

211 SCRA 144,153 ............................................................................ 211 Raymundo v. Felipe, 42 SCRA 615 ........................................................ 332 Rayo v. Metrobank, 539 SCRA 571, 579 ............................................... 229

CASE INDEX 723

RCPI v. Court of Appeals, 488 SCRA 306 ............................................ 544 Re: Report on the Judicial Audit of RTC Brs. 29 and 59,

Toledo City, 292 SCRA 8, 21-22 ...................................................... 530 Real Bank, Inc. v. Samsung Mabuhay Corporation,

633 SCRA 124,134, G.R. No. 175862, October 13,2010 ............... 449

Rebollido v. Court of Appeals, 170 SCRA 800, 809-810 ..................... 383 Reburiano v. Court of Appeals, 301 SCRA 342, 349

citing Limpin v. LAC, 147 SCRA 516, 522-523 ............................ 649 Redena v. Court of Appeals, 514 SCRA 389, 398-399

citing Sec. 5[5], Art. VII, Constitution of the Philippines ............ 11 Redena v. Court of Appeals, G.R. No. 146611,

February 6, 2007 ................................................................................ 624 Regalado v. Go, 514 SCRA 616, 634 ............................................ 309, 583 Regalado v. Go, 514 SCRA 616,635 ......................................................... 85 Remington Industrial Sales v. Court of Appeals,

382 SCRA 499, 506 ............................................................................ 355 Remy’s Freight Service v. Castro, 490 SCRA 160,166 ....................... 637 Report on the Judicial Audit Conducted in the Municipal

Trial Court of Tambulig, 472 SCRA 419, 429 ............................... 523 Republic of the Phil. v. Kenrick Development Corporation,

498 SCRA 220, 231 citing Garbo v. Court of Appeals, 258 SCRA 159 ...................................................................................... 15

Republic of the Philippines v. “G” Holdings, Inc., 475 SCRA 608, 619 citing Tolentino v. Leviste, 443 SCRA 274 ...................................................................................... 66

Republic of the Philippines v. “G” Holdings, Inc., 475 SCRA 608, 617, 618 ................................................................... 630

Republic of the Philippines v. Domingo, G.R. No. 175299, September 14, 2011 ............................................... 374, 377, 379, 389

Republic of the Philippines v. Gregorio Aquino Sr., 451 SCRA 735, 746 ............................................................................ 234

Republic v. “G” Holdings, 475 SCRA 608, 618 ................................... 633 Republic v. “G” Holdings, Inc., 475 SCRA 608, 619 ......................... .....62 Republic v. Atlas Farms, 345 SCRA 296, 300 ........................................ 79 Republic v. Court of Appeals, 260 SCRA 344, 349-350 ...................... 658 Republic v. Court of Appeals, 315 SCRA 600, 606 .............................. 189 Republic v. De Castro, 641 SCRA, 548, 588-590 ................................. 631 Republic v. Estipular, 336 SCRA 333, 340 ............................................. 69 Republic v. Glasgow Credit and Collection Services, Inc.,

542 SCRA 95,112 ................................................................................. 88 Republic v. Glasgow Credit and Collection Services, Inc.,

542 SCRA 95 101 174


Republic v. Herbieto, 459 SCRA 183,195 ............................................. 245 Republic v. Herbieto, 459 SCRA 183,196 .............................................. 97 Republic v. Hao, 4 SCRA 106,112 ................................................................ Republic v. Kenrick Development Corporation,

498 SCRA 220, 229 ........................................................................... 267 Republic v. Kenrick Development Corporation,

498 SCRA 220, 230 ........................................ .................................. 269 Republic v. Ker & Company, Ltd., 18 SCRA 207, 213- 214 ................. 90 Republic v. Malabanan, G.R. No. 169067,

October 6, 2010 ..................................................... 594, 595, 604, 605 Republic v. Nolasco, 457 SCRA 400,408 ............................................. 535 Republic v. Resins, Inc., 639 SCRA 390, 401-402,

January 12, 2011 ............................................................................... 305 Republic v. Sandiganbayan (Fourth Division),

G.R. No. 152375, December 16, 2011 ...... ............................. 515, 516 Republic v. Sandiganbayan, 173 SCRA 72,86-87 ................................ 242 Republic v. Sandiganbayan, 301 SCRA 237, 245 ................................ 511 Republic v. Sandiganbayan, 540 SCRA 431,444-448 ......................... 331 Republic v. Sandiganbayan, 540 SCRA 431, 445 ....................... 326, 327 Republic v. Sandiganbayan, 540 SCRA 431,448- 449 ...................... 420 Republic v. Sarabia, 468 SCRA 142,150 ............................................... 311 Republic v. Spouses Guilalas, G.R. No. 159564,

November 16, 2011 ............................................................................ 604 Republic v. Spouses Luriz, 513 SCRA 140,151 citing Buenaflor v.

Court of Appeals, 346 SCRA 563, 567 ............................................................................ 584

Republic v. TAFPA, Inc., G.R. No. 165333, February 9, 2010 .............................................................................. 631

Republic v. Tuvera, 516 SCRA 113,130-131............. ................................. Republic v. Tuvera, 516 SCRA 113,136 ................................................ 520 Reyes v. Court of Appeals, 38 SCRA 138,151 ...................................... 335 Reyes v. Diaz, 73 Phil. 484,486 ......................................................... 63, 65 Reyes v. Diaz, 73 Phil. 484,487 .................................................. 91, 92, 93 Reyes v. Lim, 408 SCRA 560, 566 ............................................................ 31 Reyes v. Mauricio, 636 SCRA 79,85, November 24, 2010 .................. 605 Reyes v. Paz and Judge of First Instance, 60 Phil. 440 ...................... 376 Rivera v. Del Rosario, 419 SCRA 626, 635 .......................................... 308 Rizal Surety & Insurance Company v. Manila Railroad

Corporation, 70 SCRA 187 ............................................................... 244 Robert Development Corporation v. Quitain,

315 SCRA 150 .................................................................................... 271 Robert Development Corporation v. Quitain,

315 SCRA 150,160 ............................................................................. 272

CASE INDEX 725

Robinson v. MiraUes, 510 SCRA 678 .......................................... 397, 399 Roces v. Jalandoni .................................................................................... 361 Rodil v. Benedicto, 95 SCRA 137,144-145 ......................... ........ ........ 659 Roman Catholic Archbishop of Manila v.

Court of Appeals, 258 SCRA 186,194 ............................................. 586 Romualdez- Licaros v. Licaros, 401 SCRA 762, 770 ................. 96,188 Romualdez-Licaros v. Licaros, 401 SCRA 762, 765 ............................ 189 Romullo v. Samahang Magkakapitbahay ng Bayanihan

Compound Homeowner’s Association, Inc., 632 SCRA 411, 419, G.R. No. 180687, October 6, 2010 .................................................................................. 203

Romullo v. Samahang Magkakapitbahay ng Bayanihan Compound Homeowner’s Association, G.R. No. 180687, October 6, 2010 .................................................................................. 602

Romy’s Freight Service v. Castro, 490 SCRA 160,165 .......................... 99 Rosario v. Carandang, 96 Phil. 845, 851 ............................................... 364 Rosete v. Lim, 490 SCRA 125,138-139 .................................................. 461 Roxas v. Court of Appeals, 157 SCRA 370, 377-378 ........................... 665 Roxas v. Dinglasan, 28 SCRA 430 ......................................................... 352 Royales v. IAC, 127 SCRA 470. .................................................... 164,165 Rudecon Management Corporation v. Singson,

454 SCRA 612, 627-628 .................................................................... 526 Rudecon Management Corporation v. Singson,

454 SCRA 612, 628 ............................................................................ 535 Rudecon Management Corporation v. Singson,

454 SCRA 612,629 ............................................................................ 527 Rudolf Lietz Holdings, Inc. v. Registry of Deeds of

Paranaque City, 344 SCRA 680, 684-685 ................... ........ 175,177 Rueda v. Juan, 106 Phil. 1069,1972 ...................................................... 375 Russel v. Vestil, 304 SCRA 739, 744 ..................................................... 135 Russel v. Vestil, 304 SCRA 739, 745-746 .................................... 136,137 Sablas v. Sablas, 526 SCRA 292, 279 .................................................... 327 Sablas v. Sablas, 526 SCRA 292, 296 .................................................... 321 Sablas v. Sablas, 526 SCRA 292, 297 ................. ........................ 325, 32$ Safeguard Security Agency, Inc. v. Tangco,

511 SCRA 67 ...................................................................................... 101 Sahagun v. Court of Appeals, 198 SCRA 44, 53 .................................. 192 Salandanan v. Tizon, 62 SCRA 388 ......................................................... 74 Salas v. Quinga, 13 SCRA 143,145-146 ................................................ 667 Saligumba v. Calanog, 573 SCRA 8,17 ................................................. 250 Saligumba v. Palanog, 573 SCRA 8,15-16 ......................................... ...651 Saligumba v. Palanog, 573 SCRA 8,15-16 citing

Juco v. Heirs of Tomas Siy Chung Fu, 573 SCRA 8, 8 ................ 655


Salmorin v. Zaldivar, 559 SCRA 564, 559 ...............................................76 Salting v. Velez, 639 SCRA 124,131, January 10, 2011 ..................... 539 Salting v. Velez, 639 SCRA 124,131, January 10, 2011 ..................... 539 Salvador v. Mapa, G.R. No. 135080, November 28, 2007 .................. 617 Salvador v. Ortoll, 343 SCRA 658, 668 ................................................. 549 Samala v. Court of Appeals, 363 SCRA 535, 540- 541 ..........................22 Samalio v. Court of Appeals, 454 SCRA 462, 471 .................................... 6 Samartino v. Raon, 383 SCRA 664, 673 ............................................... 327 Samson v. Cabanas, 461 SCRA 545 ...................................................... 544 Samson v. Court of Appeals, 105 SCRA 781, 787 ............................... 448 San Juan v. Cruz, 497 SCRA 410, 425-426 .......................................... 247 San Lorenzo Village Association, Inc. v. Court of Appeals,

288 SCRA 115,126 ............................................................................ 206 San Miguel Corporation v. Aballa, 461 SCRA 392, 411 ..................... 284 San Miguel Corporation v. Sandiganbayan,

340 SCRA 289, 321 ..............................................................................78 San Pedro Cineplex Properties, Inc. v. Heirs of Manuel

Humada Enano, 635 SCRA 421, 424- 425, November 17, 2010 ........................................................................... 326

San Pedro v. Asdala, G.R. No. 164560, July 22, 2009 ........................ 120 San Pedro v. Binalay, 468 SCRA 47, 57 ............................................... 541 Sanchez v. Tupaz, 158 SCRA 459 .......................................................... 161 Sandejas v. Ignacio, 541 SCRA 61, 67 .................................................. 334 Sangkay v. National Power Corporation,

489 SCRA 401, 422 ........................................................................... 664 Santiago Land Development Corporation v.

Court of Appeals, 267 SCRA 79, 87 ................................................ 243 Santiago Land Development Corporation v.

Court of Appeals, 267 SCRA 79, 86 ................................................ 349 Santiago v. De los Santos, 61 SCRA 146,149 ...................................... 260 Santiago v. De los Santos, 61 SCRA 146,150 ....................................... 260 Santo Tomas University v. Surla,

294 SCRA 382, 392-393.......................................................... 286, 339 Santos v. De Leon, 470 SCRA 455, 460 ................................................ 210 Santos v. PNOC Exploration Corporation,

566 SCRA 272 .................................................................................... 401 Santos v. PNOC Exploration Corporation,

566 SCRA 272, 278 ........................................................................... 195 Santos v. PNOC Exploration Corporation,

566 SCRA 272, 280 ........................................................................... 380 Sarmienta v. Manalite Homeowners Association,

Inc., 632 SCRA 538, 546, G.R. No. 182953, October 11,2010 ................................................................................. 203

CASE INDEX 727

Sarmiento v. Juan, 120 SCRA 403, 408 ....................................... 339, 448 Sarmiento v. Mendiola, 638 SCRA, 345, 350,

December 15, 2010 ........................................................................... 670 Sarmiento v. Yu, 497 SCRA 513, 517 ....................................................... 99 Sarmiento v. Zaratan, 514 SCRA 246, 257............................................ 270 Sarmiento v. Zaratan, 514 SCRA 246, 258............................................ 270 Sarmiento v. Zaratan, 514 SCRA 246, 260 citing

Sanchez v. Court of Appeals, 404 SCRA 540 ................................... 12 Sarmiento v. Zaratan, 514 SCRA 246, 260-261 .................................... 368 Sasan, Sr. v. NLRC, 569 SCRA 670, 686-687 ................................... 7, 8, 9 Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556,

149 N.W.2d 789, 792 .............................................................................. 1 Sea-Land Service, Inc. v. Court of Appeals,

327 SCRA 135,140 ............................................................................. 213 Senarlo v. Judge Paderanga, 617 SCRA 247, 253-254 ........................ 449 Seno v. Mangubat, 156 SCRA 113,119 .................................................. 240 Sepulveda, Sr. v. Pelaez, 450 SCRA 302, 314 ....................................... 238 Serna v. Court of Appeals, 308 SCRA 527, 533 .................................... 531 Servicewide Specialists, Inc. v. Court of Appeals,

318 SCRA 493, 501 ............................................................................ 236 Shinryo [Philippines] Company, Inc. v. RRN Incorporated,

634 SCRA 123,130, October 20, 2010 ............................................... 78 Shioji v. Harvey, 43 Phil. 333, 342 .............................................................. 2 Shipside Incorporated v. Court of Appeals, 404, Phil. 981,

352 SCRA 334 ..................................................................................... 285 Sia v. Villanueva, 504 SCRA 43, 51 ........................................................ 647 Siasoco v. Court of Appeals, 303 SCRA 186,195 ................................... 357 Siguenza v. Court of Appeals, 137 SCRA 570, 576 ................................ 24 Silverio v. Filipino Business Consultants,

466 SCRA 584, 594 ............................................................................. 527 Silverio, Jr. v. Filipino Business Consultants, Inc.,

466 SCRA 584, 595 ............................................................................. 527 Siman v. Leus, 37 Phil. 967, 968 ............................................................. 233 Sime Darby Employees Association v. NLRC,

510 SCRA 204, 217 ............................................................................. 577 Sime Darby Employees Association v. NLRC,

510 SCRA 204, 222 ................................................................................. 5 Siosoco v. Court of Appeals, 303 SCRA 186,196 citing La

Tondena Distillers v. Ponferrada, 264 SCRA 540 ......................... 182 Siy v. NLRC, 468 SCRA 154,161 ............................................................ 539 Smith Bell Co. v. Court of Appeals, 267 SCRA 530, 542 ....................... 30 So v. Court of Appeals, 388 SCRA 107, 111 .......................................... 648


So v. Food Fest Land, Inc., 642 SCRA 592, 594-595, February 9, 2011 ............................................................................... 525

Social Justice Society v. Atienza, 545 SCRA 92,114 ........................... 522 Solar Team Entertainment, Inc. v. Ricafort, 355 Phil. 404 ................ 303 Soledad v. Mamangun, 8 SCRA 110 ..................................................... 363 Solid Homes, Inc. v. Court of Appeals, 271 SCRA 157,164 ................ 263 Solidbank Corporation v. Court of Appeals,

379 SCRA 159,166 ................................................................... ....... 646 Spouses Agbada v. Inter-Urban Developers,

389 SCRA 430, 432 ............................................................................ 551 Spouses Carpio v. Rural Bank of Sto. Tomas Batangas,

489 SCRA 492, 496-497 .................................................................... 275 Spouses Carpio v. Rural Bank of Sto. Tomas Batangas,

489 SCRA 492, 497 ............................................................................ 287 Spouses de los Santos v. Carpio, 501 SCRA 390, 400 ......................... 320 Spouses Garcia v. Garcia, G.R. No. 169157,

November 14, 2011 ............................................................................ 237 Spouses Huguete v. Spouses Embudo,

405 SCRA 273, 279-280 .......................................................... 126,127 Spouses Lantin v. Lantion, 499 SCRA 718, 722 .................................. 170 Spouses Lantin v. Lantion, 499 SCRA 718, 723 .................................. 173 Spouses Layos v. Fil-Estate Golf and Development,

Inc., 561 SCRA 75 .............................................................................. 684 Spouses Romulo v. Spouses Layug, 501 SCRA 262, 276 .................... 582 Spouses Santos v. Spouses Lumbao, 519 SCRA 408,

422-423 ................................................................................................ 165 Spouses Surtida v. Rural Bank of Malinao [Albay],

Inc., G.R. No. 170563, December 20, 2006 .................................... 607 Spouses Uy v. Ariza, 499 SCRA 244, 251 ............................................. 347 Spouses Yu v. Ngo Yet Te, 514 SCRA 423............................................ 101

Springfield Development Corporation v. RTC of Misamis Oriental, 514 SCRA 326, 342-343 citing

Mangaliag v. Catubig-Pastoral, 474 SCRA 153 ............................. 33 Springfield Development Corporation v. RTC of Misamis

Oriental, 514 SCRA 326, 340........................................................... 636 Sps. Nice v. Equitable PCI- Bank, 516 SCRA 231, 251-252 ............. 639 Sps. Nice v. Equitable PCI-Bank, 516 SCRA 231, 253 ....................... 639 Sps. Rasdas v. Sps. Villa, 477 SCRA 538, 545-546 .............................. 432 Sps. Santos v. Court of Appeals, 337 SCRA 67, 74 ............................... 93 Sps. Villacastin v. Pelaez, 554 SCRA 189,194 ....................................... 71 St. Martin Funeral Homes v. NLRC, 295 SCRA 494 ........................... 98 St. Martin Funeral Homes v. NLRC, G.R. No. 130866,

September 16,1998 .................................................................. 614,615

CASE INDEX 729

Sta. Clara Homeowner’s Association v. Gaston, 374 SCRA 396, 411 ............................................................................ 211

Steel Corporation of the Philippines v. Equitable-PCI Bank, Inc., 635 SCRA 403, 415- 416, November 17, 2010 ............................................................................ 517

Stolt-Nielsen v. NLRC, 477 SCRA 516, 527 ......................................... 575 Stonehill v. Diokno, 20 SCRA 383 ......................................................... 232 Strait Times v. Court of Appeals, 294 SCRA 714, 723 ....................... 632 Stronghold Insurance Co., Inc. v. Court of Appeals,

179 SCRA 117,127 ............................................................................. 666 Suico Industrial Corporation v. Court of Appeals,

301 SCRA 212, 213 .............................................................................. 34 Sulo ng Bayan, Inc. v. Araneta, 72 SCRA 347, 356-357 ........... 254, 256 Sumaway v. Urban Bank, Inc., 493 SCRA 99,105-106 ...................... 564 Sumiran v. Damaso, 596 SCRA 450...................................................... 565 Sumiran v. Damaso, 596 SCRA 450, 456-457 ..................................... 566 Summit Trading and Development Corporation

v. Avendano, 135 SCRA 397, 400 .................................................... 383 Sun Insurance Office, Ltd. v. Asuncion (252 Phil. 280 [1989]) .......... 308 Sun Insurance Office, Ltd. v. Asuncion, 170 SCRA 274, 285 ............ 307 Suntay v. Gocolay, 470 SCRA 627, 638................................................... 67 Supena v. De la Rosa, 267 SCRA 1,11 .................................................. 169 Supena v. De la Rosa, 267 SCRA 1,14 .................................................. 173 Sustiguer v. Tamayo, 176 SCRA 579, 590 ............................................ 230 Swagman Hotels and Travel, Inc. v. Court of Appeals,

455 SCRA 175 .......................................................................... 360, 361 Sy Chin v. Court of Appeals, 345 SCRA 673, 684 ............................... 283 Systems Factors Corporation v. NLRC,

346 SCRA 149,152 ............................................................................. 610 Taguinod v. People, G.R. No. 185833, October 12, 2011 .................... 607 Talsan v. Baliwag Transit, Inc., 310 SCRA 156,163-164 ................... 384 Talusan v. Tayag, 356 SCRA 263, 276 .................................................. 190 Tamano v. Ortiz, 291 SCRA 584, 588 ......................................... 182,189 Tan v. Court of Appeals, 162 SCRA 237, 244....................................... 679 Tan v. Court of Appeals, 373 SCRA 524, 537........................................... 3 Tan v. G.V.T. Engineering Services, 498 SCRA 93,107 ....................... 99 Tan v. OMC Carriers, Inc., 639 SCRA 471, 480,

January 12, 2011 ............................................................................... 606 Tan v. Republic, 523 SCRA 203 ............................................................. 585 Tanhueco v. Aguilar, 33 SCRA 233, 237 ............................................... 250 Tankiko v. Cezar, 302 SCRA 559, 570 citing Aguila v.

Court of First Instance ofBatangas, 160 SCRA 579 ....................... 30


Tantuico, Jr. v. Republic, 204 SCRA 428, 437 ..................................... 291 Tayco v. Heirs of Tayco-Flores, 637 SCRA, 742, 752-753,

December 13, 2010 ............................................................................ 606 Tecson v. Gutierrez, 452 SCRA 781, 787 ........................................ 73, 218 Terry v. People, 314 SCRA 669, 673 ...................................................... 650 Testate Estate of Maria Manuel Vda. De Biascan v.

Biascan 347 SCRA 621..................................................................... 643 The Bases Conversion and Development Authority v.

Uy, 506 SCRA 524, 534 .................................................................... 610 The Bases Conversion and Development Authority v.

Uy, G.R. No. 144062, November 2, 2006 ....................................... 611 The Government of the Kingdom of Belgium v.

Court of Appeals, 551 SCRA 223, 241 ........................................... 588 The Heirs of Reinoso, Sr. v. Court of Appeals,

G.R. No. 116121, July 18, 2011 ......................................... 25,199, 307 Tiangco v. Bank of the Philippines, 632 SCRA 256, 267,

October 6, 2010 .................................................................................. 590 Tiangco v. Bank of the Philippines, G.R. No. 153998,

October 6, 2010 .................................................................................. 588 Tijam v. Sibonghanoy citing Mangaliag v. Pastoral,

474 SCRA 153,162 .............................................................................. 85 Tijam v. Sibonghanoy, 23 SCRA 29, 35 .......................................... 83, 84 Ting v. Heirs of Diego Lirio, 518 SCRA 334, 338 ................................. 190 Ting v. Velez-Ting, 582 SCRA 694, 704-705 ......................................... 534 Tinio v. Manzano, 307 SCRA 460, 467 .................................................. 459 Tirol v. Del Rosario, 391 Phil. 897 .......................................................... 618 Tiu v. Middleton, 310 SCRA 580, 586 ................................................... 446 Todd v. United States, 158 US 278, 39 L Ed 982,

15 S ct. 889, cited by Black’s, 5th Ed ................................................ 40 Tolentino v. Social Security Commission, 138 SCRA 428, 434 .......... 70 Tomas Claudio Memorial College, Inc. vs.

Court of Appeals, 316 SCRA 502, 508 ............................................. 72 Topacio v. Banco Filipino Savings and Mortgage Bank,

635 SCRA 50, 61-62, November 17, 2010 ..................................... 430 Torrefranca, et al. v. Albiso, 102 Phil. 732 .................................. 655,656 Torres v. Court of Appeals, 131 SCRA 24, 35 ....................................... 364 Torres v. Court of Appeals, 278 SCRA 793 ........................................... 248 Torres v. Court of Appeals, 278 SCRA 793, 811 .................................. 248 Trinidad v. Office of the Ombudsman,

539 SCRA 415, 423- 424................................................................... 431 Trocio v. Labayo, 53 SCRA 97,100 ......................................................... 509 Trust International Paper Corporation v. Pelaez,

499 SCRA 552, 560 ........................................................................... 578

CASE INDEX 731

Trust International Paper Corporation v. Pelaez, 499 SCRA 552, 561............................................................................ 623

Tung Chin Hui v. Rodriguez, 340 SCRA 765, 774 ............................... 522 Turner v. Lorenzo Shipping Corporation, 636 SCRA 13, 30,

November 24, 2010 .................................................................. 196,197 U.S. v. Tamparong, 31 Phil. 321, 327 .......................................................30 UBS Marketing Corporation v. Court of Appeals,

332 SCRA 534, 545 ............................................................................ 267 Umale v. Canoga Park Development Corporation,

654 SCRA 155,162, G.R. No. 167246, July 20, 2011 .................... 218 Umale v. Canoga Park Development Corporation,

G.R. No. 167246, July 20, 2011 ....................................................... 279 Umandap v. Sabio, Jr., 339 SCRA 243-247 .......................................... 377 Umandap v. Sabio, Jr., 339 SCRA 243, 248 ......................................... 378 Unimasters Conglomeration, Inc. v. Court of Appeals,

267 SCRA 759, 776, 777 ................................................................... 170 United Field Sea Watchman and Checkers

Agency v. Requillo, 510 SCRA 165,170 .......................................... 576 United Overseas Bank v. Ros, G.R. No. 171532,

August 7, 2007, 529 SCRA 334, 353 ............................................... 308 United Planters Sugar Milling Co., Inc. v. Court

of Appeals, 583 SCRA 63, 96 ...............................................................12 Universal Corporation v. Lim, 535 SCRA 95, 99 ................................. 174 Universal Robina Corporation v. Lim, 535 SCRA 95, 99 ................... 168 Uy v. Court of Appeals, 314 SCRA 69, 77 ............................................. 231 Uy v. Court of Appeals, 314 SCRA 69, 78 ............................................. 230 Uy v. Court of Appeals, 494 SCRA 535, 545 ......................................... 240 Uy v. First Metro Integrated Steel Corporation,

503 SCRA 704, 712-713 ............................................................ 572, 573 Valentin v. Sta. Maria, 55 SCRA 40 ...................................................... 532 Valeroso v. Court of Appeals, 598 SCRA 41 ............................................27 Valeroso v. Court of Appeals, 598 SCRA 41, 51-58 ................................28 Valmonte v. Court of Appeals, 252 SCRA 92 ............................... 411, 413 Valmonte v. Court of Appeals, 252 SCRA 92, 99-100 ......................... 391 Vda. De Barrera v. Heirs of Legaspi, 565 SCRA 192,197.... 118,121 Vda. De Formoso v. Philippine National Bank,

650 SCRA 35,44, G.R. No. 154704, June 1, 2011 ......................... 269 Vda. De Formoso v. Philippine National Bank,

G.R. No. 154704, June 1, 2011 ........................................................ 270 Vda. De Formoso v. Philippine National Bank,

G.R. No. 154704, June 1, 2011 citing Traveno v. Bobongon Banana Growers Multi-Purpose Cooperative, G.R. No. 164205, September 3, 2009 ....................... 280


Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011 ............................ 280, 288, 604, 605

Vda. De Formoso v. Philippine National Bank, G.R. No. 154704, June 1, 2011 citing Altres v. Empleo, 573 SCRA 583 ............ ....................................................... 290

Vda. de Haberer v. Court of Appeals, 104 SCRA 534 ......................... 248 Vda. De Herrera v. Bernardo, G.R. No. 170251,

June 1,2011 ........................................................................ 85,124,131 Vda. De Quiambao v. Manila Motor Co., 3 SCRA 444, 450 ............. 651 Vda. De Salazar v. Court of Appeals, 250 SCRA 305, 308... .............. 248 Vda. de Salazar v. Court of Appeals, 250 SCRA 305, 309 .................. 249 Vda. de Salazar v. Court of Appeals, 250 SCRA 305, 311 .................. 250 Vda. De Victoria v. Court of Appeals,

449 SCRA 319, 334... ....... .................... .................................... 73, 75 Velasco v. Court of Appeals, 329 SCRA 392 ......................................... 551 Velayo-Fong v. Spouses Velayo, 510 SCRA 320, 329-330 ........... ..... 94 Velayo-Fong v. Spouses Velayo, 510 SCRA 320, 331-332 .................. 407 Velayo-Fong v. Velayo, 510 SCRA 320, 331 ................... .............. ...... ............................................................................................... 377 Velayo-Fong v. Velayo, 510 SCRA 320, 331-332 .................................. 400 Velez v. Demetrio, 387 SCRA 232, 238 ................................................... 30 Versoza v. Fernandez, 49 Phil. 627, 633-634 ........................................ 228 Verzosa v. Court of Appeals, 299 SCRA 100 ........................................ 364 Vette Industrial Sales Co., Inc. v. Cheng,

509 SCRA 532, 545 ........................................................................... 369 Vette Industrial Sales Co., Inc. v. Sui Soan S. Cheng,

509 SCRA 532, 543 citing Nazareno v. Court of Appeals, 428 Phil. 32 ...................................................................... 15

Vette Industrial Sales Co., Inc. v. Sui Soan S. Cheng, 509 SCRA 532, 545 citing Vlason Enterprises Corporation v. Court of Appeals, 310 SCRA 26 .............................. 19

Vette Industrial Sales Company, Inc. v. Cheng, 509 SCRA 532, 543 .......... ......................................................................

Victory Liner v. Belosillo, 425 SCRA 79, 89-86 .............. ....................... 79 Vidal v. Escueta, 417 SCRA 617 ............................................................ 163 Viewmaster Construction Corporation v. Roxas,

335 SCRA 540, 546 ........................................................................... 212 Villaluz v. Ligon, 468 SCRA 486, 504-505 .......................................... 548 Villamor v. Court of Appeals, 434 SCRA 565, 571-572 ....................... 309 Villamor v. Salas, 203 SCRA 540, 543 .................................................... 34 Villanueva v. Court of Appeals, 379 SCRA 563, 463- 469 .................. 535 Villanueva v. Nite, 496 SCRA 459 ......................................................... 634 Vill Ni 96 SCRA 59 63 6 632

CASE INDEX 733

Villanueva v. Ople, G.R. No. 165125, November 18, 2005 .................................................................. 617,618

Villanueva v. People, G.R. No. 188630, February 23, 2011 ............................................................................... 29

Villareal v. Court of Appeals, 295 SCRA 511, 529 ............................... 326 Villarin v. Munasque, 568 SCRA 483, 497 ................................... 668, 669

Virra Mall Tenants Association, Inc. v. Virra Mall Greenhills Association, Inc., G.R. No. 182902,

October 5, 2011 .......................................................................... 196, 197 Vlason Enteprises v. Court of Appeals,

310 SCRA 26, 257-258 ...................................................................... 415 Vlason Enterprises Corporation v. Court of Appeals,

310 SCRA 26,64 ................... .................................................................... Vlason Enterprises Corporation v. Court of Appeals,

G.R. Nos. 121662-64, July 6,1999 ................................................... 318 Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 50 ................ 643 Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 55-56 .......... 384 Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 57-58 .......... 365 Vlason Enterprises v. Court of Appeals, 310 SCRA 26, 58-59 .......... 236 Wacnang v. Comelec, 569 SCRA 799, 809 .................................... 273, 277 Wagenhorst v. Philadelphia Life Insurance Co.,

358 Pa. 55, 55 A2d 762, cited by Black’s 5th Ed ............................. 39 Wang Laboratories v. Mendoza, 156 SCRA 44, 54 ................................ 91 Warner Barnes & Co., Ltd. v. Reyes, 103 Phil. 662, 665 .................... 315 Warner Barnes & Company v. Reyes, 103 Phil. 662, 665 .................. 314 Westmont Bank v. Shugo Noda & Co. Ltd.,

307 SCRA 381,391 ............................................................................. 231 Wilmerding v. Corbin Banking Co., 28 South.,

640, 641; 126 Ala., 268 ...................................................................... 547 Yasuda v. Court of Appeals, 330 SCRA 385 ......................................... 611 Yau v. Manila Banking Corporation, 384 SCRA, 340, 352 ................ 352 Yau v. Silverio, and Macapagal v. Gako, 543 SCRA 520-529 ............ 658 Ybiernas v. Tanco-Gabaldon, G.R. No. 178925, June 1, 2011 .......... 551,

554, 570, 573 Young v. Spouses Sy, 503 SCRA 151,166 ..................................... 274, 277 Yu Eng Cho v. Pan American World Airways, Inc.,

328 SCRA 717, 727-728 .................................................................... 523 Yu v. Samson-Tatad, 642 SCRA 421, 425,

February 9, 2011 ............................................................................... .576 Yulienco v. Court of Appeals, 308 SCRA 206 ............................... 332, 334 Zamora v. Heirs of Izquierdo, 443 SCRA 224 ...................................... 159 Zamora v. Heirs of Izquierdo, 443 SCRA 24, 31-32 ............................. 163


Zepeda v. China Banking Corporation, 504 SCRA 126, 131-132 ................................................................... 212

Zepeda v. China Banking Corporation, 504 SCRA 126, 131-132 .................................................................. 213

Zepeda v. China Banking Corporation, G. ............................................................................................................... N 172175 O b 9 2006 477

CIVIL PROCEDURE Volume I THE BAR LECTURES

SERIES

BY

WILLARD B. RIANO Bar Reviewer in Remedial Law, Commercial Law and Civil Law Author:

Fundamentals of Civil Procedure; Evidence, (A Restatement for the Bar);

Civil Procedure (A Restatement for the Bar); Evidence (The Bar Lectures Series);

Criminal Procedure (The Bar Lectures Series); Executive Dean, College of Law,

San Sebastian College Recoletos-Manila Member, Remedial Law and Commercial Law Committees, U.P. Law Center Professor and Lecturer,

Philippine Judicial Academy, Supreme Court of the Philippines

2011 Bantam Edition

Philippine Copyright, 2011

by

HA/\JUL

WILLARD B. RIANO ISBN 978-971-23-6261-3

No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation.

Any copy of this book without the correspond-ing number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same.

ALL RIGHTS RESERVED BY THE AUTHOR

No. 0995

ISBN 978-971-23-6261-3

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Printed by

REX pRillTllHj COfflPfMH, Inc. Typography & Creative Lithography

84 P. Florentine) St, Quezon City Tel. No. 857-77-77

FOREWORD

This work is the first volume of a two-volume material in Civil Procedure and is prepared primarily for the law student and the bar reviewee as an aid to passing the annual bar examinations. Hence, its scope discloses no pretensions of being an exhaustive discussion of every procedural principle.

In this volume, every effort is made to incorporate the available latest pronouncements of the Supreme Court. References are also made to the year when a particular topic was recently made the subject of the bar examinations.

Like similar materials written before this edition, this work is a sincere and humble attempt to present procedural principles in a manner that would approximate their application to actual litigation. However, owing to the limited purpose of this material, it is not possible to include every procedural principle that may possibly arise in the litigation process although the reader may find within its pages the fundamental principles necessary to grasp the essence of procedural law.

This material is written based on the theory that the study of procedure is not the difficult process it has traditionally been made to appear. As we had earlier stated in a similar treatise, there is a “need to provide a fresh look at the subject so the reader may see how the various pieces of the procedural puzzle neatly fit into a beautiful and logical scheme.” Hence, the reader will find that the topics in this material constitute the rearranged versions of those found in the Rules of Court. The rearrangement is intended to bring down the study of procedure to a more simplified yet workable level so the student of law may come to realize that procedural principles are neither abstract nor circuitous.

Again, as it has always been said, the deepest gratitude to our students and bar reviewees is sincerely acknowledged, they being the primary sources of energy in the development of this

work. The same gratitude is expressed to Atty. Maria Theresa Cabayan of Rex Publications whose editorial talent proved to be truly indispensable and to Riyah Lalaine Domingo for her tremendous efforts in researching the legal materials needed for this work. Without them, this work would not have been made possible.

Quezon City, Philippines December 22, 2011

WILLARD B. RIANO

DEDICATION

. Nina ...my baby...

V

CONTENT

Chapter I General Principles

I. Remedial Law and the Rules of Court Concept of Remedial Law ............................................................... 1 Substantive Law Distinguished from Remedial Law ................ 1 The Procedural Rules under the Rules of Court are not Laws 1 Prospective Effect of the Rules of Court (Bar 2011) ................... 2 Applicability to Pending Actions; Retroactivity (Bar 2011)... 2 When Procedural Rules do not Apply to Pending Actions ........ 3 Applicable Actions or Proceedings ................................................ 3 Inapplicable Actions or Proceedings ............................................. 4 Scope of Civil Procedure .................................................................. 9

II. Rule-Making Power of the Supreme Court Constitutional Authority to Promulgate Rules ........................... 9 Power to Amend the Rules ............................................................. 10 Power to Suspend the Rules; Power to Reverse Itself ................ 11 Limitations on the Rule-Making Power of the

Supreme Court ....................................................................... 13 The Rule on Liberal Construction; purpose (Bar 1998) ............. 13 Meaning of the Rule on Liberal Construction ............................. 14 Extent and Scope of the Rule on Liberal Construction .............. 15 General Rule on Liberal Construction; Exceptions .................... 16 Liberal Construction as Applied to Civil Cases;

Illustrations............................................................................. 18 Liberal Construction Rule Applied to Criminal Cases .............. 27 Equity Jurisdiction and the Liberal Construction Rule ............ 29

III. Nature of the Philippine Courts Courts of Law and Equity............................................................... 30 Application of Equity; Equity Jurisdiction .......... ........................ Principle of Judicial Hierarchy (Bar 2011) .................................. 31 When the Doctrine of Hierarchy of Courts may be

Disregarded (Bar 2011) ......................................................... 33

vii

Doctrine of Non-Interference or Doctrine of Judicial Stability (Bar 2011) ................................................................ 34

Constitutional and Statutory Courts ............................................ 34 Civil and Criminal Courts .............................................................. 35 Courts of Records and Courts not of Record ................................ 35 Superior and Inferior Courts .......................................................... 35 Courts of General and Special Jurisdiction ................................. 36 Courts of Original and Appellate Jurisdiction ............................ 36 Original and Exclusive Jurisdiction Distinguished .................... 37 Concurrent Jurisdiction .................................................................. 38 Meaning of‘Court’ ............................................................................. 39 A Court Distinguished from a Judge ............................................ 39

IV. The Basic Framework of Ordinary Civil Actions I. Right of Action and Cause of Action ................................... 42

A. Right of Action and Causes of Action ......................... 42 B. Jurisdiction, Venue and Parties, Prescription,

and Conditions Precedent .................................. 43 C. Preparation of the Complaint ...................................... 46 D- Filing of the Complaint ................................................ 49 E. Possible Proceedings after the Filing of the

Complaint ............................................................. 50 II. Summons; Motion for Bill of Particulars;

Motion to Dismiss ......................................................... 52 III. Answer; Default ..................................................................... 55 IV. Pre-Trial .................................................................................. 58 V. Trial.......................................................................................... 59 VI. Judgment ................................................................................ 59 VII. Post Judgment Remedies ..................................................... 60 VIII. Execution and Satisfaction of Judgment ........................... 60

Chapter II Jurisdiction and Venue I. Jurisdiction

A. Jurisdiction in General Jurisdiction; Meaning .................................................. 61 Jurisdiction is not the Power of the Judge ............... 62 Jurisdiction does not Refer to the

Decision Itself ....................................................... 62 Test of Jurisdiction ....................................................... 63 Duty of a Court to Determine itsJurisdiction .......... 63 Effect of Lack of Jurisdiction ...................................... 64

viii

Aspects of Jurisdiction ................................................. 64 B. Jurisdiction Over the Subject Matter

Meaning of Jurisdiction Over the Subject Matter ..................................................... 65

Jurisdiction Versus the Exercise of Jurisdiction .. 66 Error of Jurisdiction Versus Error of

Judgment (Bar 1989) ......................................... 66 Lack of Jurisdiction and Excess of Jurisdiction.... 68 Jurisdiction and Cause of Action (Bar 1988)............ 68 How Jurisdiction Over the Subject Matter is

Conferred .............................................................. 69 Consequences of the Rule that Jurisdiction is

Conferred by Law ............................................... 69 How Jurisdiction over the Subject Matter is

Determined .......................................................... 70 The Defenses and the Evidence do not

Determine Jurisdiction ...................................... 72 Exception to the Rule that Juridiction is

Determined by the Allegations of the Complaint ............................................................. 74

Doctrine of Primary Jurisdiction (Primary Administrative Jurisdiction) ............................. 76

Doctrine of Adherence of Jurisdiction (Continuity of Jurisdiction) ............................... 78

Law which Governs Jurisdiction ............................... 80 Objects to Jurisdiction over the Subject Matter... 80 Omnibus Motion Rule.................................................. 82 Effect of Estoppel on Objections to Jurisdiction... 83 Tijam’ Ruling, an Exception rather than

the Rule ................................................................ 84 C. Jurisdiction Over the Parties Meaning of

Jurisdiction Over the Person; Jurisdiction in personam ..................................... 85

How jurisdiction Over the Persons of the Parties is Acquired (Bar 2009) .......................... 86

Voluntary Appearance of the Defendant .................. 86 When Jurisdiction Over the Person of the

Defendant is Required ....................................... 87 Objections to Jurisdiction Over the Person

of the Defendant .................................................. 89 Effect of Pleading Additional Defenses Aside from Lack of

Jurisdiction Over the Person of the Defendant; Prior Rule Re-examined ............................................... 90

ix

D. Jurisdiction Over the Issues Meaning of Jurisdiction Over the Issue .................... 91 How Jurisdiction Over the Issue is Conferred

and Determined .................................................. 92 Jurisdiction Over the Issue Distinguished

from Jurisdiction Over the Subject Matter .. 93 Distinction Between a Question of Law and a

Question of Fact (Bar 2004) .............................. 93 When an Issue Arises even if not Raised

in the Peadings .................................................... 94 E. Jurisdiction Over the Res (Property in Litigation)

Meaning of Jurisdiction Over the Res; Actions in Personam, In Rem, and Quasi in Rem ....... 95

How acquired ................................................................ 96 Extent of Relief when Jurisdiction is only

Over the Res......................................................... 97 F. Jurisdiction of the Supreme Court

The Supreme Court is not a Trier of Facts ............... 99 Exceptions ..................................................................... 100 Original Cases Cognizable by the Supreme

Court ..................................................................... 101 Appeal to the Supreme Court ..................................... 103 Cases which under the 1987 Constitution must

be Heard en banc ................................................ 103 Procedure when the Supreme Court en banc

is Equally Divided ............................................... 104 G. Jurisdiction of the Court of Appeals

Power to Try and Conduct Hearings like a Trial Court ........................................................... 106

H. Jurisdiction of the Court of Tax Appeals I. Jurisdiction of Municipal Trial Courts

Explanatory Note ......................................................... 109 Demand not Exceeding P300,000.00 or

P400,000.00.......................................................... 110 The Totality Rule .......................................................... Ill Actions Involving Personal Property ......................... 112 Probate Proceedings ..................................................... 112 Granting Provisional Remedies ................................. 112 Delegated Jurisdiction ................................................. 112 Special Jurisdiction ...................................................... 114 Summary Procedure; Small Claims Cases .............. 114 Actions for Forcible Entry and Unlawful

Detainer (Bar 2009) ............................................ 114

X

Real Actions other then Forcible Entry and Unlawful Detainer (Bar 2010) .......................... 115

Basis is Assessed Value (Bar 2008; 2009) ................ 121 Inquiring into the Allegations of the

Complaint and the Relief Sought; Alleging the Assessed Value ............................. 124

Actions Involving Title to Real Property; Meaning ................................................................ 130

Appeal of Judgments of the MTC .............................. 131 J. Jurisdiction of the Regional Trial Courts

Exclusive Original Jurisdiction of the RTC .............. 131 Concurrent Original Jurisdiction............................... 133 Appellate Jurisdiction .................................................. .. 133 Special Jurisdiction to Try Special Cases ................. 133 Jurisdiction Over Intra-Corporate

Controversies ....................................................... 134 The RTC is a Court of General Jurisdiction ............. 135 Actions Incapable of Pecuniary Estimation

(Bar 1997; 2003; 2009) ....................................... 135 Extent of Tried Court’s Jurisdiction When

Acting as a Probate Court (Bar 2011) .............. 139 K. Jurisdiction of the Family Courts L. Jurisdiction of Shari’a Courts

Shari’a Courts; Types................................................... 141 Original Jurisdiction of Shari’a District Courts ... 141 Concurrent Jurisdiction of Shari’a

District Courts ..................................................... 142 Appellate Jurisdiction of Shari’a District

Courts ................................................................... 142 Finality of Decisions ..................................................... 142 Original Jurisdiction of Shari’a Circuit Courts ........ 143 Rules Applicable ........................................................... 143

M. Jurisdiction Over Civil Cases Subject to Summary Procedure (Basic Features)

Scope of the 1991 Revised Rules on Summary Procedure ............................................................. 143

Civil Cases Subject to Summary Procedure (Bar 2004; 1995; 1993;1991; 1989;1988) ......... 144

Pleadings allowed ......................................................... 144 Prohibited Pleadings and Motions ............................. 144 Outright Dismissal ....................................................... 146 Answer ........................................................................... 146 Effect of Failure to answer .......................................... 146

xi

Preliminary Conference; Effects of Failure to Appear .............................................................. 146

Subsequent Proceedings ............................................. 147 Appeal ............................................................................ 148

N. Jurisdiction Over Small Claims Cases (Basic Features)

A. ..................................................................................... M. No. 08-8-7-SC, as amended ................................................ 148 Applicability .................................................................. 150 Commencement of the Action .................................... 151 Action of the Court ....................................................... 152 Summons and Notice of Hearing ............................... 154 Response; Counterclaim .............................................. 154 Failure to File a Response ........................................... 155 Appearance on Date of Hearing; Postponement... 155 Non-Appearance at the Hearing ................................ 156 Appearance of Attorney ............................................... 156 Duties of the Court During the Hearing;

Confidentiality of Settlement Discussions.... 157 Confidentiality .............................................................. 157 Failure of Settlement ................................................... 157 Decision .......................................................................... 157 No Appeal ...................................................................... 158 Execution ....................................................................... 158

O. Jurisdiction Over Barangay Conciliation Proceedings (Basic Features)

Basic Principles............................................................. 158 Initiation of Proceedings .............................................. 159 Personal Appearance of Parties ................................. 159 Parties to the Proceedings ........................................... 160 Subject Matters for Settlement (Bar 2009) .............. 160 Referral to the Lupon by the court ............................. 162 Form of Settlement ...................................................... 162 Effect of Amicable Settlement and Award ............... 162 Execution of Award or Settlement ............................. 163 Importance of Barangay Conciliation

Proceedings .......................................................... 163 II. Venue

Meaning of Venue ........................................................ 165 Venue is not a Matter of Substantive Law ............... 165 Basic Venue Analysis .................................................. 166 Venue of Personal Actions (Bar 2011) ....................... 166 Venue of Real Actions (Bar 2009) .............................. 166

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Venue of Actions for Forcible Entry and Unlawful Detainer .............................................. 167

Venue of Actions Against Non-Residents Affecting the Personal Status of the Plaintiff; Actions Affecting Property of the Non-Resident in the Philippines ............ 167

When the Rules on Venue Do Not Apply ................. 168 Stipulations on Venue (Bar 1997; 2001) ................... 168 Adopted Illustrations ................................................... 173 Dismissal Based on Improper Venue ........................ 174 When Court May make a Motu Proprio

Dismissal Based on Improper Venue ............... 175 Denial of a Motion to Dismiss Based on

Improper Venue; No Appeal .............................. 175 Improper Venue is not Jurisdictional;

Waiver of Improper Venue ................................ 176 Venue Distinguished from Jurisdiction

(Bar 2006) ............................................................. 177

Chapter III Actions, Causes of Action, and Parties I. Actions Definition .......................................................................................... 179 Civil Actions and Criminal Actions .............................................. 179 Actions Distinguished from Special Proceedings

(Bar 1998; 1996) ..................................................................... 180 The Special Proceedings Under the Rules of Court;

Application of Rules in Ordinary Civil Actions ................. 180 Special Civil Actions in the Rules of Court ................................. 181 Real and Personal Actions (Bar 2006; 2004) .............................. 181 Significance of the Distinction Between a Personal

and a Real Action ................................................................... 185 In Personam and in rem actions (Bar 1994; 2009) ....................... 186 Quasi in rem actions ........................................................................ 191 Significance of Distinction Between Actions In Rem,

In Personam and Quasi in Rem .............................................. 192 When Summons by Publication may be Made in an

Action In Personam ................................................................. 195

II. Cause of Action (Rule 2) Meaning ........................................................................................... 196 When Cause of Action is Required ............................................... 196

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Elements of a Cause of Action ....................................................... 197 Cause of Action as Applied to Administrative Cases ................. 197 Cause of Action Based on Contracts ............................................. 198 Cause of Action Based on the Vicarious Liability

of an Employer ........................................................................ 198 Cause of Action for a Sum of Money Based on a

Promissory Note ..................................................................... 199 Cause of Action for Unlawful Detainer ........................................ 200 Cause of Action for Forcible Entry ................................................ 202 Cause of Action for Malicious Prosecution ................................... 203 Cause of Action in Environmental Cases ..................................... 204 Action Distinguished from Cause of Action (Bar 1999) ............. 204 Failure to State a Cause of Action (Pleading Asserting

the Claim States No Cause of Action) ................................. 204 Test to Determine When Pleading Asserting the Claim

States No Cause of Action ..................................................... 205 Effect of a Finding that the Complaint States

a Cause of Action .................................................................... 206 Failure to State a Cause of Action and Lack of a Cause

of Action; Failure to Establish a Cause of Action .............. 206 Failure to Establish a Cause of Action ......................................... 209 Test of the Sufficiency of the Statement of a

Cause of Action ....................................................................... 210 Allegations of the Complaint Determine Whether

or not the Complaint States a Cause of Action .................. 211 Importance of the Allegations of the Complaint ......................... 213 Splitting a Single Cause of Action (Bar 1996; 1999; 2005).... 215 Prohibition Against Splitting a Single Cause of Action ............. 216 The Three Tests to Ascertain Whether Two Suits

Relate to a Single or Common Cause of Action ................. 218 Anticipatory Breach......................................................................... 221 Effect of Splitting a Single Cause of Action

(Bar 1998; 1999)...................................................................... 221 Joinder of Causes of Action (Bar 1996; 1999; 2000;

2005; 2011) .............................................................................. 222 Joinder of Claims in Small Claims Cases .................................... 225 Remedy in Case of Misjoinder of Actions ..................................... 225

III. Parties (Rule 3) Parties to a Civil Action .................................................................. 226 Who May Be Parties ........................................................................ 226 Juridical Persons as Parties ........................................................... 226 Entities Authorized by Law to be Parties .................................... 227 Entity Without a Juridical Personality as a Defendant ............ 228

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Effect When a Party Impleaded is not Authorized to be a Party ............................................................................ 228

Averment of Capacity to Sue or be Sued ...................................... 229 A Minor or an Incompetent as a Party ......................................... 229 Real Party in Interest (Bar 1988; 1989) ....................................... 229 Plaintiff in Environmental Cases .................................................. 233 Ground for Dismissal When a Party is not the Real

Party in Interest ..................................................................... 233 Prosecution/Defense of an Action in the Name of the

Real Party in Interest ............................................................ 234 Representative Parties .................................................................... 234 Suit by an Agent............................................................................... 235 Citizen Suit under the Rules of Procedure for

Environmental Cases ............................................................ 235 Failure to Include the Name of a Party in the Pleading ............ 236 Rule on ‘standing’ as Distinguished from the Concept

of‘Reed Party-In-Interest’ ...................................................... 236 Indispensable Parties (Bar 1996) .................................................. 236 Compulsory Joinder of Indispensable Parties ............................. 238 Dismissal for Failure to Implead an Indispensable

Party (Bar 2010) ..................................................................... 238 Necessary Parties ............................................................................ 240 Distinction Between an Indispensable and a

Necessary Party ...................................................................... 240 Duty of Pleader if a Necessary Party is not Joined;

Effect (Bar 1998) ..................................................................... 241 When Court May Order Joinder of a Necessary

Party (Bar 1998) ..................................................................... 241 Effect of Failure to Comply with the Order of the

Order (Bar 1998; 2011) .......................................................... 241 Effect of a Justified Non-Inclusion of a Necessary

Party (Bar 1998) ..................................................................... 241 Illustrations ...................................................................................... 241 Unwilling Co-Plaintiff. .................................................................... 243 Alternative Defendants (Bar 2011) ............................................... 243 Misjoinder and Non-Joinder of Parties (Bar 2009; 2010) .......... 244 Unknown Identity or Name of the Defendant ............................ 245 Effect of Death of a Party on the Attomey-Client

Relationship ............................................................................ 245 Duty of Counsel Upon the Death of his Client ............................ 246 Action of Court Upon Notice of Death; Effct of Death

on the Case (Bar 2009) .......................................................... 246 When there is No Need to Procure an Executor

or Administrator ..................................................................... 247

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No Requirement for Service of Summons ................................... 247 Purpose and Importance of Substitution of the Deceased ........ 248 Examples of Actions Which Survive the Death of a

Party (Bar 2011) ..................................................................... 249 Actions for the Recovery of Money on Contractual Claims... 250 Incompetency or Incapacity of a Party during the

Pendency of the Action .......................................................... 251 Transfer of Interest ......................................................................... 251 Indigent Parties ............................................................................... 251 Role of the ‘Solicitor General’ ......................................................... 252 Suit by or Against Spouses ............................................................ 253 Class Suit; Requisites ..................................................................... 253 Commonality of Interest in the Subject Matter ......................... 254 No Class Suit when Interests are Conflicting ............................. 255 No Class Suit by a Corporation to Recover Property

of its Members ........................................................................ 255 No Class Suit to Recover Real Property

Individually Held ................................................................... 256 No Class Suit to Recover Damages for Personal

Reputation .............................................................................. 256 Common or General Interest in the Environment

and Natural Resources ......................................................... 256 Dismissal or Compromise of a Class Suit .................................... 258

Chapter IV Pleadings and Motions I. Pleadings

A. General Principles on Pleadings Nature of Pleadings ..................................................... 259 Necessity and Purpose of Pleadings .......................... 259 Construction of Pleadings ........................................... 260 Construction of Ambiguous Allegations

in Pleadings ......................................................... 260 System of Pleading in the Philippines ...................... 261 Pleadings Allowed by the Rules of Court

(Bar 1996) ............................................................. 261 Pleadings Allowed Under the Rules on

Summary Procedure .......................................... 261 Pleadings in the Rule of Procedure for Small

Claims Cases ....................................................... 261 Pleadings Not Allowed in a Petition for a

Writ of Amparo or Habeas Data .......................... 262 Pleadings in the Rules of Procedure for

Environmental Cases ......................................... 263

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Nature of the Pleading; How Determined ................ 263 Variance Between Caption and Allegations

in the Pleading .................................................... 263 B. Parts of a Pleading

Caption of the Pleading ............................................... 264 Title of the Action .......................................................... ......................................................................................... 265 Body of the Pleading ..................................................... 265 Headings; Designation of Causes of Actions

Joined in One Complaint ................................... 265 Allegations of Ultimate Facts ..................................... 265 Allegations in an Environmental Case ..................... 266 Relief. .............................................................................. 266 Signature and Address ................................................ 267 Effect of an Unsigned Pleading .................................. 268 Significance of the Signature of Counsel

(Bar 1996)............................................................. 268 When Counsel is Subject to Disciplinary

Action in Connection with Pleadings ............... 269 Verification in a Pleading ............................................ 269 How a Pleading is Verified .......................................... 269 Significance of a Verification ....................................... 269 Effect of Lack of a Verification (Bar 2011) ................ 270 Other Requirements ..................................................... 271 Certification Against Forum Shopping

(Bar 2000; 2009; 2010) ....................................... 272 Applicability to Special Civil Actions ......................... 273 Meaning of Forum Shopping ...................................... 273 Three Ways of Committing Forum Shopping .......... 275 Rationale Against Forum Shopping .......................... 275 How to Determine Existence of Forum

Shopping .............................................................. 276 Who Executes the Certification Against Forum

Shopping (Bar 2000); Exception ....................... 279 Rule if there are Several Plaintiffs or

Petitioners; Exception ........................................ 280 Liberal Interpretation of the Rules on the

Signing of the Certification Against Forum Shopping ................................................. 282

When the Rule of Liberal Construction Applies... 285 Signing the Certification when the Plaintiff is a

Juridical Entity ................................................... 286 Pleadings Requiring a Certification Against

Forum Shopping 286

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Effects of Non-Compliance with the Rule on Certification Against Forum Shopping

(Bar 1996) ............................................................ 287 Exceptions to the effects of Non-compliance ............ 288 No Appeal from an Order of Dismissal ..................... 288 Effect of Willful and Deliberate Forum

Shopping .............................................................. 288 Effect of Submission of a False Certification............ 288 Effect of Non-Compliance with Undertakings ......... 289 Summary of Guidelines Respecting Non-

Compliance with the Requirements of, or Submission of Defective, Verificationn and Certification Against Forum Shopping ........... 289

C. Allegations In Pleadings Manner of Making Allegations ................................... 290 Conditions Precedent ................................................... 291 Effect of Failure to Comply with a Condition

Precedent ............................................................. 292 Pleading a Judgment ................................................... 292 Pleading an Official Document or Act ....................... 292 Pleading Capacity to Sue or be Sued ......................... 293 Pleading Fraud, Mistake or Condition

of the Mind ........................................................... 293 Pleading Alternative Causes of Actions

or Defenses .......................................................... 293 Pleading Actionable Documents (Bar 1991;

2004; 2005) ........................................................... 296 How to Contest an Actionable Document;

Oath Required (Bar 2010) ................................. 297 When an Oath is Not Required (Bar 1987) .............. 297 Meaning of Admission ................................................. 298 Defenses Cut-off by the Admission of

Genuineness and Due Execution ..................... 298 Defenses not Cut-off by the Admission of

Genuineness and Due Execution ..................... 299 D. Filing and Service of Pleadings, Judgments

and other Papers in Civil Cases Meaning of ‘Filing’ ........................................................ 299 Meaning of ‘Service’ ...................................................... 299 Upon Whom Service shall be Made ........................... 299 Service upon Counsel Representing

Several Parties .................................................... 300 Manner of Filing ........................................................... 300 How to Prove Filing ..................................................... 301

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Papers Required to be Filed and Served ................... 301 Modes of Service ............................................................ 302 Personal Service; Priority in Modes of Service

and Filing ............................................................. 302 When Personal Service is Deemed Complete ........... 304 Service by Mail .............................................................. 304 When Service by Mail is Deemed Complete ............. 305 Substituted Service ....................................................... 305 When Substituted Service is Complete ..................... 305 How to Prove Service (Bar 2011) ................................ 305

E. Kinds of Pleadings 1. Complaint ............................................................. 306

Meaning of Complaint ........................................ 306 Filing of the Complaint ...................................... 306 Significance of Filing of the Complaint ............ 306 Payment of Docket Fees and

Acquisition of Jurisdiction ........................ 306 Effect of Failure to Pay Docket Fee on

Supplemental Complaint ......................... 309 Payment of Docket Fees for Cases

on Appeal .................................................... 309 Payment of Full Docket Fees within the

Prescribed Period for Taking an Appeal is, as a Rule, Mandatory ........................... 310

2. Answer .................................................................. 311 Nature of an Answer .......................................... 311 Defenses in the Answer ...................................... 311 Effect of Absence of a Specific Denial ............... 311 Purpose of a Specific Denial .............................. 312 Kinds of Specific Denials (Bar 2011) ................ 312 Negative Pregnant .............................................. 315 When a Specific Denial must be Coupled

with an Oath (Bar 2010) ............. ............. ........................................................ 315

Matters not Deemed Admitted by the Failure to Make a Specific Denial ........... 317

Affirmative Defenses .......................................... 317 2(a) Default .......................................................... 318 Nature of Default ................................................ 318 Requisites Before a Party may be

Declared in Default (Bar 1999) ............... 319 The Elements of a Valid Declaration

of Default..................................................... 321 No Motu Propio Declaration of Default ........... 321

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Failure to File Response under the Rule of Procedure for Small Claims Case ........... 322

Failure to File an Answer under the Rule of Procedure for Environmental Cases. 322

Failure to File a Return under the Rule on the Writ of Amparo .............................. 322

Failure to File a Return under the Rule on the Writ of Habeas Data ..................... 323

Failure to File an Answer under the 1991 Revised Rules on Summary Procedure 323

Effect of a Declaration/Order of Default .......... 323 Effect of Partial Default (Bar 2011) ................. 324 Action of the Court After the Declaration/

Order of Default......................................... 324 Court not Required to Receive Evidence

Personally ................................................... 325 Admission of Answer Filed Out of Time ......... 325 Remedies of a Defending Party Declared

in Default (Bar 1998) ................................ 326 Current Judicial Trend on Defaults ................ 327 Implied Lifting of the Order of Default ........... 327 Extent of Relief in a Judgment by Default... 331 Cases Where a Declaration/Order of Default

cannot be Made.......................................... 331 Judgment by Default for Refusal to Comply

with the Modes of Discovery .................... 331 3. Counterclaim ....................................................... 332

Nature of a Counterclaim (Bar 1999; 2010) ........................................ 332

Compulsory Counterclaim; Tests ..................... 333 Incompatibility Between a Compulsory Counterclaim

and A Motion to Dismiss ....................................................... 336

Permissive Counterclaim (Bar 2011) .............. 337 Distinctions Between a Compulsory and a

Permissive Counterclaim ......................... 338 How to Set up an Omitted Counterclaim ....... 341 How to Set up a Counterclaim Arising

After Serving the Pleading ...................... 341 Period to answer a Counterclaim ..................... 341 Effect of the Dismissal of a Complaint on the

Counterclaim Already Set up (Bar 2010)

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4. Cross-Claim .......................................................... 343 Nature of a Cross-Claim ..................................... 343 No Cross-Claim on Appeal ................................. 344 Distinctions Between a Counterclaim

and a Cross-Claim (Bar 1999) .................. 344 Period to Answer a Cross-Claim ....................... 344

5. Third (Fourth, Etc.)-Party Complaint Nature of a Third-Party Complaint .................. 345 Leave of Court ...................................................... 347 Answer to a Third-Party Complaint ................. 347

6. Intervention .......................................................... 347 Nature of Intervention (Bar 2011) .................... 347 Requisites for Intervention (Bar 2000) ............ 350 Procedure for Intervention ................................. 351 Meaning of Legal Interest .................................. 352 Time for Intervention .......................................... 352

F. Reply Nature of a Reply .......................................................... 352 Filing of Reply, not Mandatory ................................... 353 When Filing of Reply is Advisable .............................. 353

G. Amendment of Pleadings (Rule 10) Amendment as a Matter of Right ............................... 354 Applicability of Mandamus ......................................... 355 A Motion to Dismiss is not a Responsive

Pleading (Bar 1979; 2005) .................................. 355 Amendment by Leave of Court (Bar 1994; 1986).. 356 Amendment to Cure a Failure to State a Cause

of Action; to Conform to the Evidence .............. 358 Amendment to Conform to the Evidence .................. 359 No Amendment Where no Cause of Action

Exists ..................................................................... 360 Amendment to Correct a Jurisdictional Defect

Before a Responsive Pleading is Served .......... 362 Amendment to Correct a Jurisdiction Defect

After a Responsive Pleading is Served ............. 363 Effect of the Amendment on the Original

Pleading ................................................................ 364 Effect of the Amendment on Admissions Made

in the Original Pleading ..................................... 364 When Summons Not Required After

Complaint is Amended ....................................... 365 Supplemental Pleadings .............................................. 365 Cause of Action in Supplemental Pleadings ............. 366

Answer to a Supplemental Pleading; Not Mandatory .................................................... 366

II. Motions in Civil Cases Definition of a Motion ............................................................ 367 Form of Motions ...................................................................... 367 Contents of a Motion .............................................................. 367 Hearing of the Motion; Litigated and Ex

Parte Motions ................................................................ 368 Notice of the Motion ............................................................... 368 Proof of Service ........................................................................ 369 Motion Day .............................................................................. 369 Effect of Failure to Set the Motion for Hearing, to

Include a Notice of Hearing and to Serve the Motion (Secs. 4, 5, 6 of Rule 15) ............................ 369

Motion for Leave to File a Motion ........................................ 370 The Omnibus Motion Rule (Bar 2010; 2011) ..................... 370 Prohibited Motions Under the 1991 Revised Rules

on Summary Procedure ............................................... 371 Prohibited Motions in the Rules of Amparo and

Habeas Data ................................. ...... ......................... 372 Prohibited Motions Under the Rule of Procedure

for Small Claims Cases as Amended ......................... 372 Prohibited Motions Under the Rule of Procedure

for Environmental Cases ............ ................................ 373

Chapter V Summons

Nature of Summons (Rule 14) ....................................................... 374 Issuance of Summons; Not Discretionary .................................... 374 Effect of Knowledge of the Filing of the Action ........................... 374 Purpose of Summons in Actions in Personam ............................ 376 Strict Compliance Rule ................................................................... 377 Purpose of Summons in Actions In Rem and

Quasi In Rem .......................................................................... 378 Voluntary Appearance by the Defendant .......... ......................... .................................................................................. 378 Who Issues the Summons .............................................................. 380 When Summons is Issued .............................................................. 380 To Whom Summons is Directed .................................................... 380 Who Serves Summons .................................................................... 380 Contents of the Summons .............................................................. 380 Return and Proof of Service ........................................................... 381 Uniformity of the Rules on Summons .......................................... 381 Service of Summons without Copy of the Complaint ................ 381

YYIt

Service Upon an Entity Without a Juridical Personality .......... 382 Service Upon a Prisoner ................................................................. 382 Service Upon a Minor and an Incompetent ................................. 383 Service Upon a Private Domestic Juridical Entity ..................... 383 Service Upon a Foreign Private Juridical Entity ........................ 388 Service Upon a Public Corporation ............................................... 388 Service Upon an Unincorporated Government Agency ............. 388 A. Service in Person on Defendant (formerly

personal service of summons) ..................................... 389 B. Substituted Service of Summons (Bar 2004; 2006) ........... 392

How Substituted Service is Made ........................................ 395 Effect if Defendant does not Actually Receive

the Summons ................................................................ 396 When Defendant Prevents Service of Summons ............... 397

C. Summons by Publication ...................................................... 399 Service Upon a Defendant whose Identity or

Whereabouts are unknown ......................................... 401 Service Upon a Resident Temporarily Out

of the Philippines .......................................................... 403 Extraterritorial Service of Summons .................................. 404 Actions Involved in Extraterritorial

Service of Summons ..................................................... 405 Modes of Extraterritorial Service (Bar 2008) ..................... 408 Application of Principles ........................................................ 409 Remedy of Attachment Against Non-Resident

Defendants not Found in the Philippines ................. 413 Summons when Complaint is Amended ............................ 415

Chapter VI Proceedings After Service of Summons and Dismissal of Actions

Preliminary Statements ................................................................. 417

A. Motion for Bill of Particulars When to File the Motion ................................................................. 418 Purpose of the Motion ..................................................................... 419 Purpose of a Motion for Bill of Particulars in a

Criminal Case ......................................................................... 421 Requirements for the Motion ......................................................... 421 Action of the Court (Bar 2008) ....................................................... 421 Compliance with the Order ............................................................ 421 Bill of Particulars as Part of the Pleading .................................... 422

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Effect of Non-Compliance with the Order of the Court or Insufficient Compliance .................................. 422

Stay of Period to File Responsive Pleading .................................. 422

B. Motion to Dismiss A Motion to Dismiss is not a Pleading .......................................... 423 Hypothetical Admissions of a Motion to Dismiss

(Bar 1989) ................................................................................ 424 Omnibus Motion (Bar 2010) ........................................................... 424 Contents and Form of the Motion to Dismiss .............................. 426 Time to File the Motion ................................................................... 427 When a Motion to Dismiss may be Filed Even After

the Answer has been Served and Filed ............................... 427 Grounds for Motion to Dismiss ...................................................... 428 Laches as a Ground for a Motion to Dismiss

Under Rule 16 ......................................................................... 428 Res Judicata as a Ground for a Motion to Dismiss .................... 429 Concepts of Res Judicata .................................................................. 430 Elements of Res Judicata ................................................................. 430 Application of Res Judicata to Quasi-Judicial

Proceedings .............................................................................. 431 No Res Judicata in Criminal Proceedings ................................... 431 Pleading Grounds as Affirmative Defenses ................................. 431 Remedy of the Defendant if the Motion is Denied ...................... 432 When Certiorari is Available ......................................................... 433 Remedies of the Plaintiff if the Motion to Dismiss

is Granted ................................................................................ 433 When Complaint Cannot be Refiled (Bar 2011) ......................... 435 Effect of Dismissal of Complaint on the Counterclaim

(Bar 2008; 2010)...................................................................... 435 Hearing of the Motion to Dismiss .................................................. 436

C. Dismissal by the Plaintiff Dismissal by Mere Notice of Dismissal ........................................ 437 Dismissal without Prejudice .......................................................... 438 Two-dismissal Rule (Bar 1989) ...................................................... 439 Dismissal by Filing a Motion to Dismiss ...................................... 439 Effect of Dismissal Upon a Counterclaim Already

Pleaded (Bar 2008; 2010) ...................................................... 440 Dismissal without Prejudice (Sec. 2, Rule 17) ............................. 440 Dismissal due to the fault of Plaintiff (Sec. 3, Rule 17) .............. 441 Effect of Dismissal on the Counterclaim (Sec. 3, Rule 17;

Bar 2010) ................................................................................. 441 Dismissal with Prejudice (Sec. 3, Rule 17) ................................... 443

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Dismissal of a Class Suit ................................................................ 443 Dismissal of Counterclaim, Cross-claim or

Third-Party Complaint .......................................................... 444

Chapter VII Pre-Trial and Modes of Discovery A. Pre-Trial

Concept, Nature and Purpose of a Pre-Trial (Bar 2009) ........... 445 Effect of Failure to Conduct a Pre-Trial ....................................... 446 Referral to the Philippine Mediation Center ............................... 447 How Pre-Trial is Called; Filing of Motion by

Plaintiff (Bar 1999) ................................................................. 447 When Motion is Filed by Plaintiff ................................................. 447 The Meaning of ‘Last Pleading” ..................................................... 447 Notice of Pre-Trial (Bar 1977) ........................................................ 448 Appearance of Parties and Counsels in the Pre-Trial

(Bar 1992) ................................................................................ 449 Effect of Failure to Appear by the Plaintiff

(Bar 1989; 1981; 1980) ........................................................... 449 Effect of Failure to Appear by the Defendant (Bar 2011) .......... 450 How Non-Appearance is Excused ................................................. 450 Pre-Trial Brief; Filing and Contents ............................................. 452 Identification and Marking of Evidence ....................................... 452 Legal Effect of Representations and Statements

in the Pre-trial Brief. .............................................................. 453 Effect of Failure to File a Pre-Trial Brief ..................................... 453 No Termination of Pre-Trial for Failure to Settle ....................... 453 One Day Examination of Witness Rule (Bar 2009) .................... 454 Most Important Witness Rule ....................................................... 454 Questions are to be Asked by the Judge ...................................... 454 Pre-Trial Order ................................................................................. 454 Implied Issues are Deemed Included in the

Pre-Trial Order ....................................................................... 455 Distinctions between Pre-Trial in Civil Cases

and Pre-Trial in Criminal Cases (Bar 1997) ...................... 455 Preliminary Conference Under the Revised

Rules on Summary Procedure .............................................. 457 Preliminary Conference in the Court of Appeals ........................ 457

B. Modes of Discovery Meaning of Discovery ...................................................................... 458 Purpose of Discovery ....................................................................... 458 Duty of the Court in Relation to the Modes of Discovery .......... 459

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Modes of Discovery Under the Rules of Court (Bar 2000) .... 459

I. Depositions (Rules 23-24) Depositions Pending Actions; Leave of Court

When Required ...................................................................... 460 Deposition of a Prisoner ................................................................. 461 Before Whom Taken ....................................................................... 461 Examination of the Deponent ....................................................... 462 Use of Depositions Pending Action ............................................... 462 Effect of Substitution of Parties .................................................... 463 Effect of the Taking of Deposition of a Person ............................ 464 Effect of using the Deposition of a Person ................................... 464 Oral Deposition ................................................................................ 464 Deposition Upon Written Interrogatories ................................... 466 Depositions Before Action .............................................................. 466 Perpetuation of Testimony Before Action.................................... 467 Depositions Pending Appeal .......................................................... 467

II. Interrogatories to Parties (Rule 25) Purpose of Interrogatories to Parties ........................................... 468 Distinguished From a Bill of Particulars ..................................... 468 Distinguished From Written Interrogatories in a

Deposition ............................................................................... 468 Procedure .......................................................................................... 469 Effect of Failure to Serve Written Interrogatories ..................... 469

III. Admission by Adverse Party (Rule 26) Purpose of Admission by Adverse Party ...................................... 470 When Request is Made ................................................................... 470 Effect of Not Filing a Written Request for Admission ............... 470 Effect of Failure to File and Serve a Sworn Statement

of Denial .................................................................................. 471 Effect of Admission.......................................................................... 471 Deferment of Compliance............................................................... 471 Withdrawal of Admission............................................................... 471

IV. Production or Inspection of Documents or Things (Rule 27)

Purpose ............................................................................................. 472 Filing of a Motion; Order of the Court.......................................... 472 Privileged Documents ..................................................................... 473

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V. Physical and Mental Examination of Persons (Rule 28)

Applicability ..................................................................................... 473 Procedure .......................................................................................... 474 Waiver of Privilege .......................................................................... 474

VI. Refusal to Comply with the Modes of Discovery (Rule 29)

A. Refusal to Answer Any Question .......................................... 475 B. Refusal to Answer Designated or Particular

Questions or Refusal to Produce Documents or Things or to Submit to Physical or Mental Examination ................................ 475

C. Refusal to be Sworn ................................................................ 476 D. Refusal to Admit ...................................................................... 476 E. Failure to Attend Depositions or to Serve

Answers to Interrogatories (Bar 2010) ...................... 476

C. Alternative Dispute Resolution Institutionalization of ADR ............................................................ 478 Declaration of Policy of the Act ...................................................... 478 Alternative Dispute Resolution System ....................................... 478 Commercial Arbitration ................................................................. 479 New York Convention ..................................................................... 479 Convention State; Convention Award .......................................... 479 Non-convention State; Non-Convention Award ......................... 479 Court-annexed Mediation .............................................................. 479 Court-referred Mediation ............................................................... 479 Cases in which the ADR Law does not Apply ............................. 480 Voluntary Mediation; Confidentiality .......................................... 480 Other Forms of ADR; International Commercial

Arbitration .............................................................................. 482 Confidentiality Provision ................................................................ 482 Referral to Arbitration .................................................................... 483 Domestic Arbitration; Construction Disputes............................. 483 Interim Reliefs or Provisional Remedies ..................................... 484 Confirmation and Review of Domestic Arbitral Awards ........... 485 Recognition and Enforcement of Foreign Arbitral Awards... 486 Venue and Jurisdiction; Notice ..................................................... 486 Rejection of a Foreign Arbitral Award ......................................... 487 Appeal from Court Decisions on Arbitral Awards...................... 487 Foreign Arbitral Awards are not Foreign Judgments ............... 488 Office for Alternative Dispute Resolution .................................... 488

D. Selected Features of the Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules; AJM. No. 07-11-08-SC, effective October 30,2009)

Subject Matter and Governing Rules ........................................... 489 Nature of the Proceedings .............................................................. 490 Some Important Features .............................................................. 490 Prohibited Pleadings, Motions or Petitions ................................. 491 Judicial Relief Involving the Issue of Existence, Validity

and Enforcement of the Arbitration Agreement ............... 492 Judicial Relief after Arbitration Commences .............................. 492 Confirmation, Correction or Vacation of Award in

Domestic Arbitration ............................................................. 493 Recognition and Enforcement or Setting Aside of an

International Commercial Arbitration Award .................. 496 Recognition and Enforcement of a Foreign Arbitral Award.. 499 Rule on Judicial Review of Foreign Arbitral Award .................. 501 Motion for Reconsideration ............................................................ 501 No Appeal or Certiorari on the Merits of an

Arbitral Award ....................................................................... 503 When Appeal is Allowed ................................................................. 503 Prohibition on Alternative Remedies ............................................ 505 Rule on Judicial Review on Arbitration in the Philippines

(not a foreign arbitral award) ............................................... 505 When a Petition for Certiorari is Allowed .................................... 506 Appeal by Certiorari to the Supreme Court ................................ 507

Chapter VIII Trial, Demurrer to Evidence and Judgment A. Trial

Nature of Trial’ ................................................................................. 509 Trial and Hearing ............................................................................ 509 When Trial is Unnecessary (Bar 1996) ........................................ 509 Notice of Trial ................................................................................... 510 Calendaring of Cases ....................................................................... 510 Session Hours ................................................................................... 511 Adjournments and Postponements ............................................... 511 Limitation on the Authority to Adjourn ....................................... 511 Postponement on the Ground of Illness ....................................... 511 Postponement on the Ground of Absence of

Evidence (Bar 1975) .............................................................. 512 Postponement is not a Matter of Right......................................... 512 Reception of Evidence...................................................................... 512 Issues in the Trial ............................................................................ 513

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Agreed Statement of Facts ............................................................. 513 Order of Trial; Modification of the Order of Trial ....................... 513 Reopening the Case of a Party for the Purpose of

Introducing Further Evidence .............................................. 515 Consolidation or Severance (Bar 2011) ........................................ 516

B. Demurrer to Evidence Motion to Dismiss in Rule 16 Distinguished from

Demurrer to Evidence ........................................................... 518 Stage of the Proceedings When Demurrer to Evidence

is Availed of ............................................................................. 518 Ground for a Demurrer to Evidence ............................................. 519 Effect of Denial of the Demurrer to Evidence ............................. 519 Effect of Granting of the Demurrer to Evidence ......................... 520 Demurrer in a Civil Case as Distinguished From

a Demurrer in a Criminal Case (Bar 2007) ........................ 521

C. Judgment Meaning of a Judgment .................................................................. 521 Judgment and Decision .................................................................. 522 Requisites of a Valid Judgment .................................................... 522 Orders Granting or Denying a Motion to Dismiss ..................... 524 Denials of a Petition for Review or of a

Motion for Reconsideration ................................................... 524 Conflict Between the Dispositive Portion and

Body of the Decision ............................................................... 524 Ambiguity in the Judgment; Clarificatory Judgment ............... 525 Resolutions of the Supreme Court ................................................ 525 Interlocutory Orders ....................................................................... 526 Questioning Interlocutory Orders ................................................. 527 Memorandum Decisions ................................................................. 527 Meaning of Rendition of Judgment .............................................. 529 Period Within Which to Render a Decision ................................. 529 Extension of the Period to Render a Decision ............................. 531 Judgment Penned by a Judge who did not Hear

the Evidence ............................................................................ 531 Judgment Penned by a Judge who had Ceased to

be a Judge ................................................................................ 532 Judgment Penned by a Judge who was Transferred ................ 532 Judgments of the Supreme Court ................................................. 533 Rule of Stare Decisis ......................................................................... 533 Obiter Dictum .................................................................................... 535 When a Judgment Becomes Final ................................................ 535

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Final Judgment Versus Interlocutory Order .............................. 536 Conclusiveness of Judgments (Immutability

of Judgments) (Bar 2011) ..................................................... 537 Reasons for the Rule on Conclusiveness or Immutability

of Judgments .......................................................................... 538 Remedies Against a Final and Executory Decision .................... 539 Exceptions to the Rule of Immutability of Judgments .............. 539 Res Judicata Effect of a Final Judgment or Final Order ............ 541 Judgment on the Merits ................................................................. 543 Doctrine of Law of the Case............................................................ 544 Several Judgment ............................................................................ 544 Separate Judgment ......................................................................... 545 Conditional Judgment..................................................................... 545 Judgment Sin Perjuicio .................................................................... 545 Judgment Nunc Pro Tunc (literally, “now for then”) ................... 546 Judgment Upon a Compromise (Bar 1996) ................................. 547 Judgment Upon a Confession (Cognovit Actionem) ...................... 549

D. Judgment on the Pleadings (Bar 1999; 1993; 1978) Nature of Judgment on the Pleadings .......................................... 549 Motion Required............................................................................... 550 Cases Where Judgment on the Pleadings will not apply .......... 550

E. Summary Judgment (Bar 1989) Nature of Summary Judgment (Bar 1986; 1989;

1996; 1999) .............................................................................. 550 Determination of the Amount of Damages; Not Necessary

to Finality of Judgment ......................................................... 553 Distinctions Between a Judgment on the Pleadings and a

Summary Judgment (Bar 1989) .......................................... 554 Judgment Against an Entity Without a Juridical

Personality .............................................................................. 555 Entry of Judgment; Date Thereof ................................................. 555 Relevance of Knowing the Date of the Entry

of a Judgment ......................................................................... 556

Chapter IX Post Judgment Remedies

I. Remedies Before a Judgment Becomes Final and Executory

Post Judgment Remedies Available to the Aggrieved Party (Bar 2006) ..................................................................... 557

mnt

A. Motion for Reconsideration (Rule 37) Object of the Motion......................................................................... 558 When to File ...................................................................................... 558 Effect of the Filing of the Motion on the Period to Appeal.... 559 Grounds for a Motion for Reconsideration ................................... 559 Pro Forma Motion (Bar 2011) ........................................................ 560 Resolution of the Motion ................................................................. 561 The “fresh period” Rule; Neypes Rule ........................................... 561 Application of the Neypes Rule to Criminal Cases ..................... 566 Order of Denial, Not Appealable ................................................... 568 Remedy When Motion is Denied .................................. ................ 569 Effect of Granting a Motion for Reconsideration ........................ 569 Partial Reconsideration .................................................................. 570 The Single Motion Rule .................................................................. 570 Motion for Reconsideration in Summary Procedure .................. 570

B. Motion for New Trial (Rule 37) Nature of a New Trial ..................................................................... 570 When to File ...................................................................................... 570 Effect of the Filing of the Motion on the Period to Appeal.... 571 Form of a Motion for New Trial ..................................................... 571 Grounds for a Motion for New Trial (Bar 2011) .......................... 571 Affidavit of Merit .............................................................................. 572 Newly-Discovered Evidence; Requisites ...................................... 573 Gross Negligence of Counsel not a Ground for New Trial ......... 573 Resolution of the Motion ................................................................. 573 Denial of the Motion; the “fresh period” Rule .............................. 573 Order of Denial, not Appealable .................................................... 574 Remedy When Motion is Denied ................................................... 574 Effect of Granting the Motion for New Trial (Bar 2011) ........... 574 Partial New Trial ............................................................................. 575 Second Motion for New Trial ......................................................... 575 Motion for New Trial in Summary Procedure ............................ 575

APPEALS General Principles on Appeal ....... ................................................ ........................................................... 575 Judgments or Orders that are Not Appealable ........................... 576 Remedy in Case the Judgment or Final Order is Not

Appealable ............................................................................... 579 Issues that may be Raised on Appeal ........................................... 579 Issues that the Appellate Court Decides on Appeal;

No Change of Theory on Appeal .......................................... 580

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When Errors Not Raised on Appeal may be Considered ........... 581 Appeals in Criminal Cases ............................................................. 583 Payment of Docket Fee ................................................................... 583 Record on Appeal; Notice of Appeal .............................................. 584 Dismissal of an Appeal .................................................................... 586

A. Appeal from Municipal Trial Courts to the Regional Trial Courts (Rule 40)

Where to Appeal from a Judgment or Final Order of a Municipal Court ................................................... 590

When to Appeal ................................................................................ 590 How to Appeal; Contents of Notice of Appeal .............................. 590 Perfection of the Appeal .................................................................. 591 Duty of the Clerk of Court of the RTC .......................................... 591 Submission of Memorandum ......................................................... 591 When Case is deemed Submitted for Decision ............................ 592 Basis of the Decision ........................................................................ 592 Appeal from an Order Dismissing a Case

for Lack of Jurisdiction .......................................................... 592

B. Appeal from The Regional Trial Courts to the Court of Appeals (Rule 41)

Modes of Appeal from the Decision of the Regional Trial Court (Bar 2009) ........................................................... 593

Modes of Appeal from the Regional Trial Court to the Court of Appeals (Bar 2009) ................................................. 594

Mode of Appeal from the Regional Trial Court to the Supreme Court ....................................................................... 595

Application of Rule 41 on Ordinary Appeal ................................. 595 When to Appeal (Bar 2011) ............................................................ 595 How to Appeal .................................................................................. 596 Questions That may be Raised on Appeal ................................... 597 Residual Jurisdiction ....................................................................... 597

C. Petition for Review from the Regional Trial Courts to the Court of Appeals (Rule 42)

Application of Rule 42 ..................................................................... 598 When to Appeal ................................................................................ 598 How to Appeal .................................................................................. 599 Residual Jurisdiction ....................................................................... 600 Stay of Judgment ............................................................................. 600

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D. Appeal by Certiorari to the Supreme Court (Rule 45)

Application of Rule 45 ..................................................................... 601 Provisional Remedies ...................................................................... 603 Not a Matter of Right ...................................................................... 603 Questions of Law; Questions of Fact ............................................. 604 Findings of Facts; Not Ordinarily Reviewed ............................... 605 When Questions of Fact May Be Passed Upon in

a Rule 45 Petition ................................................................... 607 Appeal from a Judgment in a Petition for a Writ of Amparo

Or Writ of Habeas Data; Writ of Kaiikasan ...................... 609 Certiorari Under Rule 45 is not the Certiorari

Under Rule 65 (Bar 1998; 1999) .......................................... 609 When to Appeal ................................................................................ 612 How to Appeal ............................................ ..................................... 613

E. Other Appeals Appeals from Quasi-Judicial Bodies (Rule 43) ............................ 614 Review of Decisions of the NLRC (Bar 2006) .............................. 614 How to Appeal .................................................................................. 613 Appeals from the Sandiganbayan ................................................. 615 Review of the Rulings of the Ombudsman (Bar 2006) ............... 616 Appealable Decisions of the Ombudsman are not

Stayed by Injunction .............................................................. 619 Appeals from Judgments of the Court

of Tax Appeals (Bar 2006) .................................................... 620 Review of Judgments of the Commission on Elections

(Bar 2011) ................................................................................ 620 Review of Judgments of the Commission on Audit

(Bar 2011) ................................................................................ 621 Appeals from Judgments of the Civil Service Commission.. 621 Appeals from Judgments of the Office

of the President ...................................................................... 622

II. Remedies After a Judgment has Become Final and Executory

A. Petition for Relief or Relief from Judgments. Orders or Other Proceedings (Rule 38)

Nature of the Petition ...................................................................... 622 Grounds for a Petition for Relief; Proper Court .......................... 623 Extrinsic Fraud; Concept (Bar 2011) ............................................ 624

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Petition is Available Only to the Parties ...................................... 624 Petition is Available to Proceedings after the Judgment .......... 624 When to File ...................................................................................... 625 Form of the Petition; Affidavit of Merit ........................................ 626 Order to Answer ............................................................................... 626 Hearing of the Petition .................................................................... 626 Action of the Court ........................................................................... 626 Preliminary Injunction Pending the Petition for Relief ............. 627 No Petition for Relief in the Supreme Court and

Court of Appeals ..................................................................... 627 No Petition for Relief in Summary Procedure,

Small Claims .......................................................................... 629

B. Annulment of Judgments or Final Orders or Resolutions (Rule 47)

Nature of the Action ........................................................................ 630 Grounds for Annulment .................................................................. 631 Extrinsic Fraud ................................................................................ 632 Forgery or Peijuiy ............................................................................ 632 Lack of Jurisdiction ......................................................................... 633 Period for Filing the Action ............................................................ 633 Who May File the Action ................................................................ 633 Basic Procedure ................................................................................ 634 Effect of a Judgment of Annulment .............................................. 634 Remedy When the Questioned Judgment has Already

been Executed ......................................................................... 635 Application of Rule 47; Annulment of

Judgments of the MTC ......................................................... 635 Annulment of Judgments of Quasi-Judicial Bodies ................... 635

C. Certiorari (Rule 65) Nature of the Remedy ..................................................................... 636 Motion for Reconsideration ............................................................ 637 Material Data (Date) Rule .............................................................. 639 Certification Against Forum Shopping ........................................ 639 Observance of Hierarchy of Courts ............................................... 639 Certiorari does not Interrupt the Principal Case ........................ 640 Remedy in Order to Interrupt the Course of the

Principal Case ......................................................................... 640

D. Collateral Attack of a Judgment Distinction Between a Direct from a Collateral Attack ............. 640

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Chapter X Execution and Satisfaction of Judgments

Meaning of Execution ...................................................................... 642 Part of the Judgment to be Executed ........................................... 642 When Execution Shall Issue .......................................................... 642 How Execution Shall Issue ............................................................. 643 Where Application for Execution Made ....................................... 644 No Appeal from an Order of Execution ........................................ 645 Form and Contents of Writ of Execution ..................................... 645 Writ of Execution should Conform to the Dispositive

Portion of the Judgment ........................................................ 645 Lifetime of the Writ of Execution (Bar 1995) .............................. 647 When Execution Will be Denied .................................................... 647 Quashal of a Writ of Execution (Bar 2009) .................................. 648 Duty of Sheriff .................................................................................. 649 Modes of Execution of a Judgment

(Bar 1982; 1987; 1997) ........................................................... 650 Revival of judgment (Bar 1997) ..................................................... 651 Venue of an Action to Revive a Judgment ................................... 657 When the Five-Year Period is Interrupted (Bar 1993) .............. 657 When the Five and Ten-Year Periods Do Not Apply ................. 658 Stay of Execution of a Judgment; Exceptions ............................. 659 Judgments Not Stayed by Appeal ................................................. 659 Discretionary Execution (Bar 1991; 1995) ................................... 660 Requisites for Discretionary Execution ........................................ 661 Discretionary Execution is to be Strictly Construed .................. 661 Good Reasons.................................................................................... 662 Frivolous Appeal as Reason for Discretionary Execution ......... 664 Posting of Bond as Reason for Discretionary

Execution (Bar 1991) ............................................................. 665 Financial Distress as Reason for Discretionary Execution... 666 Where to File an Application for Discretionary Execution.... 666 Remedy Where the Judgment Subject to Discretionary

Execution is Reversed or Annulled ...................................... 666 Execution in Case the Judgment Obligee Dies ........................... 667 Execution in Case the Judgment Obligor Dies ........................... 667 How to Execute Judgments for Money; Summary ..................... 667 Money Judgments are enforceable only Against

Property of Judgment Debtor ............................................... 669 Garnishment of Debts and Credits ............................................... 670 Levy of Encumbered Property ....................................................... 671 Effect of Levy and Sale of Property ............................................... 671

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Execution of a Judgment for the Performance of a Specific Act ....................................................................... 672

Execution for a Judgment for the Delivery or Restitution of Real Property (Bar 1995) ............................. 672

Contempt is not a Remedy ............................................................. 673 Removal of Improvements on the Property Subject

of Execution ............................................................................. 674 Property Exempt from Execution (Bar 1981) .............................. 674 When the Property Mentioned is not Exempt

form Execution ........................................................................ 676 Proceedings When Property Levied Upon is

Claimed by Third Persons; Terceria (Bar 1982; 1984;

1993; 2011) .............................................................................. 676 Miscellaneous Principles to be Remembered in

Execution Sales ....................................................................... 679 Sale and Redemption of Real Property (Bar 2009) ..................... 681 Effect if no Redemption is Made .................................................... 681 Rents, Income and Earnings of the Property

Pending the Redemption ....................................................... 682 Remedy When the Judgment is Unsatisfied

(Bar 1983; 2002; 2008) ........................................................... .................................................................................682

Effect of Final Judgments............................................................... 682

APPENDICES Appendix A

A.M. No. 11-3-6-SC................................................................. 685 Appendix B

A.M. No. 08-8-7-SC................................................................. 687 C I d 691

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