Civil Procedure Reviewer

CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
There is a table, a gavel, there is someone sitting there. Then

below, there are lawyers sitting down. But actually, what is
described is a courtroom and not a court.
INTRODUCTION
1.
a)
b)
2.
Substantive law a part of law which creates,

defines or regulates rights concerning life, liberty or
property, or the powers of agencies or
instrumentalities for the administration of public
affairs. (Primicias vs. Ocampo 49 OG 2230)
A court has no physical existence, only a legal one.

Q: What is a court?
Procedural/Adjective/Remedial Law prescribes

the method of enforcing rights or obtaining redress
for their violation. (Bustos v. Lucero 81 Phil.
640,650)
A: A court is an entity or body vested with a portion of the judicial

power. (Lontok vs. Battung, 63 Phil. 1054)
Q: Why portion only?
Sources of Remedial law:

a)
b)
c)
d)
e)
3.
Similarly, when you are asked to describe a corporation, you will

refer to the building, the office, the employees etc. But a
corporation, as you know in Persons, is a juridical entity. It is a
creature of the law. It is a person under the law but it has no
physical existence.
Major divisions in law:
A: This is because the Constitution provides that the judicial

power shall be vested in one Supreme Court (SC) and in such other
lower courts as may be established by law. (Art. VIII, Section 1,
1987 Constitution.
The Constitution
Laws creating the judiciary
Laws defining and allocating jurisdiction to different
courts
Rules promulgated by the SC
circulars, administrative orders, internal rules and
SC decisions
The reason that the law creates different courts is to divide the
cases or judicial power among them so that one court may not be
burdened with so many cases.
Scope of Remedial Law:

a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
So, judicial power is not exercised only by one court, but by several
courts.
Constitution
Civil Procedure (Rules 1 to 56 and other related
laws);
Provisional Remedies (Rules 57 to 61);
Special Civil Actions (Rules 62 to 71)
Special Proceedings (Rules 72 to 109)
Criminal Procedure (Rules 110 to 127)
Evidence (Rules 128 to 133)
Katarungang Pambarangay Law (RA 7160) and
Implementing rules
Revised Rules on Summary Procedure.
Rules on Small Claims Case
Rules on Environmental Cases
There is a division of labor and this division is done thru delineating

jurisdiction among courts. Jurisdiction will be discussed in the
following parts.
2.)
Just as corporations cannot act without its officers, a court cannot

function without a judge. But do not say that the court and the
judge mean the same thing. The judge is the person or officer who
presides over a court.
JUDICIAL POWER includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Sec. 1, Art. VIII, 1987
Constitution)
Q: Distinguish court from judge.

A: The following are the distinctions:
The power of judicial review is the Supreme Court's power to

declare a law, treaty, international or executive agreement,
presidential decree, proclamation, order, instruction,
ordinance or regulation unconstitutional.
Basic concepts in Remedial Law
1.)
Judge
Court
Describe it.
1.)
Court is the entity, body, or tribunal vested with a

portion of the judicial power, while judge is the
person or officer who presides over a court.
2.)
Judges are human beings they die, they resign,

they retire, they maybe removed. The court
continues to exist even after the judge presiding
over it ceases to do so. In the Supreme Court, for
example, the justices presiding over it are not the
same justices who presided it in the early part of
this century yet the Court in some decisions states
that as early 1905, WE have already ruled such as
such Why do they use WE? They are talking
about the court, they are not talking about

themselves. The court is continuous. It does not die

alongside with the justices who presided on it.
3.)
1.
2.
3.
The two concepts may exist independently of each

other, for there may be a court without a judge or a
judge without a court. (Pamintuan vs. Llorente, 29
Phil. 342)
4.
Court of Tax Appeals (RA 1125)

Sandiganbayan (PD 1486 as amended)
Sharia District Courts and the Sharia Circuit
Courts (PD 1083 , also known as the Code of
Muslim Personal Law);
Family Courts
Policy of Judicial Hierarchy

3.)
Hearing and Trial

This policy means that a higher court will not entertain direct resort
to it unless the redress desired cannot be obtained in the
appropriate courts.
Hearing is not synonymous with trial. The words hearing and

trial have different meanings and connotations. Trial may refer to
the reception of evidence and other processes. It embraces the
period for the introduction of evidence by both parties. Hearing, as
known in law, is not confined to trial but embraces the several
stages of litigation, including the pre-trial stage. A hearing does not
necessarily mean presentation of evidence. It does not necessarily
imply the presentation of oral or documentary evidence in open
court but that the parties are afforded the opportunity to be heard.
(Republic v. Sandiganbayan, 416 SCRA 133)
While it is true for example that the Supreme Court, Court of

Appeals and the Regional Trial Courts have concurrent original
jurisdiction to issue writs of Certiorari, Prohibition, Mandfamus,
such concurrence does not accord litigants unrestrained freedom
of choice of the court to which the application for the writ may be
directed. The application should be filed with the court of lower
level unless the importance of the issue involved deserves the
action of the court of the higher level.
HIERARCHY OF THE COURTS
4.)
In the 1996 BAR: One of the questions in Remedial Law was: State
the hierarchy of the Courts in the Philippines.
Classification of courts in general.
A: Generally, courts may be classified as:

1.
Constitutional and Statutory Courts;
2.
Superior Courts and First-Level courts (inferior courts);
3.
Courts of Original jurisdiction and Courts of Appellate
jurisdiction;
4.
Civil Courts and Criminal Courts;
5.
Courts of law and Courts of equity;
6.
Courts of record; probate Courts; Land Registration
Courts; Ecclesiastical Courts; Military Courts
a.) Regular courts

SUPREME COURT
COURT OF APPEALS
CONSTITUTIONAL COURTS vs. STATUTORY COURTS

Q: Distinguish Constitutional Courts from Statutory Courts.
A: CONSTITUTIONAL COURTS are created directly by the
Constitution itself, while STATUTORY COURTS are created by law or
by the legislature. The first cannot be abolished by Congress
without amending the Constitution while the second can be so
abolished by just simply repealing the law which created them.
REGIONAL TRIAL COURTS
MetTC
MTCC
MTC
MCTC
Note:
In our country, there is only one Constitutional court the

Supreme Court. Even the Sandiganbayan is not considered a
Constitutional court because it was not created by the Constitution
directly. The 1973 Constitution, particularly Art. XIII, Section 5
ordered the then National Assembly to create a special court to be
known as the Sandiganbayan which shall have jurisdiction over
criminal and civil cases involving graft and corrupt practices and
such other offenses committed by public officers and employees,
including those in government-owned or controlled corporations in
relation to their office as may be determined by law.. It was law
that created the Sandiganbayan (PD 1486).
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Minglanilla, Argao
MCTC- circuitized areas because it is impractical and expensive to
maintain one MTC in every municipality.
b.) Special courts
There are also Special Courts which are also considered part of the
judiciary. These are:
The CA, RTC, and the MTC are created by the Congress.

So there is only one Constitutional court. All the rest, from the CA
down and all other special courts, are only creatures of Congress.
may bring the case to the appellate court which has the power to
change the decision of the original court.
In political law, the power to create carries with it the power to

abolish. That is why, BP 129 abolished all existing courts at that
time (CFI, CA, Juvenile and Domestic courts, etc.) and RTC, IAC,
MTC were created. That was the judicial reorganization of 1980
under BP 129. But there is only one court which the Batasan
Pambansa could not touch the Supreme Court.
Q: Is the SC an original or appellate court?

A: The SC is both an original and an appellate court. The SC has
original jurisdiction on cases of certiorari, prohibition, mandamus,
etc. There are certain cases where one may file directly to the SC.
Q: Is the CA an original or appellate court?
SUPERIOR COURTS vs. FIRST-LEVEL COURTS
A: The same is true with the CA. It is both original and appellate
court. (Section 9, BP 129) When we study the jurisdiction of the CA,
you will see that it is both an original and an appellate court. There
are cases which are elevated to it from the RTC, but there are also
cases which are filed there for the first time like an action for
annulment of an RTC judgment.
Q: Distinguish superior courts from inferior courts.

A: SUPERIOR COURTS, otherwise known as courts of general
jurisdiction, are those which take cognizance of all kinds cases,
whether civil or criminal, and possess supervisory authority over
lower courts. The refer to these courts which have the power of
review or supervision over another lower court.
Q: How about the RTC? Is the RTC an original or appellate court?
INFERIOR COURTS, otherwise known as courts of special or limited

jurisdiction, are those which take cognizance of certain specified
cases only. (14 Am. Jur. 249) They are those which, in relation to
another are lower in rank and subject to review and supervision of
the latter.
A: The RTC is also both original and appellate court. You can file
certain cases there for the first time, and there are also decisions of
the MTC which are appealable to the RTC.
Q: What courts are superior or inferior?
A: The MTC however, is a 100% original court. It is the lowest court

in the hierarchy. There are no cases appealed to it. There is no such
animal as barangay court. The barangay captains do not decide
cases, they only conciliate.
Q: How about the MTC? Is the MTC an original or appellate court?
A: It DEPENDS from what viewpoint you are looking at it. If you are
looking from the viewpoint of the Constitution, there is only one
superior court the Supreme Court.
CIVIL COURTS vs. CRIMINAL COURTS
From the viewpoint of other laws, the Court of Appeals (CA) maybe
inferior to the SC but it is a superior court for it exercises
supervision over RTC. In the same manner that the RTC might be
inferior to the SC and the CA but it has also power of supervision
over MTC. The jurisdiction of the RTC is varied. It is practically a jack
of all trade. The RTC has also the power of supervision over MTC.
Q: Distinguish civil courts from criminal courts.

A: CIVIL COURTS are those which take cognizance of civil cases
only, while CRIMINAL COURTS are those which take cognizance of
criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd
Ed., p. 301)
A superior court may therefore handle civil, criminal cases while an

inferior court may try specified cases only. The SC, CA including the
RTC are considered as superior courts.
All the courts in the Philippines are both civil and criminal courts.
They can handle both types of cases. The SC decides civil and
criminal cases. The same is true with the CA, RTC and MTC.
The MTC is a first-level (inferior) court so that its power is limited to

specified cases despite of the law which expanded the jurisdiction
of the MTC. It does not have any supervisory authority over any
lower court.
So, in the Philippines, there is no such thing as a 100% criminal

court or civil court. During the 70's there was the old Circuit
Criminal Court. As the name implies, it is purely a criminal court.
But with other courts, this was abolished by BP 129.
ORIGINAL COURT vs. APPELLATE COURT
With the abolition of those special courts, all their powers were
transferred to the present RTC. Right now, there is no such thing as
a 100% civil court or a 100% criminal court. So, all our courts are
both civil and criminal courts at the same time.
Q: Distinguish original court from appellate court.

A: ORIGINAL COURTS are those where a case is originally
commenced, while APPELLATE COURTS are those where a case is
reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
So, if you are filing a case for the first time, that case is filed in an
original court. But the case does not necessarily end there. You

COURTS OF LAW vs. COURTS OF EQUITY
ALONZO vs. IAC - May 28, 1987
Q: Distinguish Courts of Law from Courts of Equity.
HELD: The question is sometimes asked, in serious inquiry or in

curious conjecture, whether we are a court of law or a court of
justice. Do we apply the law even if it is unjust or do we administer
justice even against the law? Thus queried, we do not equivocate.
The answer is that we do neither because we are a court both of
law and of justice. We apply the law with justice for that is our
mission and purpose in the scheme of our Republic.
A: COURTS OF LAW are tribunals administering only the law of the

land, whereas COURTS OF EQUITY are tribunals which rule
according to the precepts of equity or justice, and are sometimes
called courts of conscience. (Ballentines Law Dict., 2nd Ed., p.
303)
COURTS OF RECORD
Courts Of Law dispose cases according to what the promulgated

law says while Courts Of Equity adjudicate cases based on the
principles of equity. Principle of equity means principles of justice,
fairness, fair play or of what is right and just without inquiring into
the terms of the statutes.
Those whose proceedings are enrolled and which are bound to

keep a written record of all trials and proceedings handled by
them. RA 6031 mandates all MTCs to be courts of record.
PROBATE COURTS
Q: Are the Philippine courts, courts of law? Or courts of equity?

Do they decide cases based on what the law says or based on the
principle of justice and fairness?
Those which have jurisdiction over settlement of estate of

deceased persons.
A: In the Philippines, our courts, original or appellate, are both

courts of law and of equity. (U.S. vs. Tamparong 31 Phil. 321)
LAND REGISTRATION COURTS

Those which have jurisdiction over registration of real properties
under the Torrens System.
In the case of substantive law, there is a thin line which divides the
principle of law from the principle of equity because principles of
equity are also found in the principles of law. Equity is what is fair
and what is just and equitable. Generally, what is legal is fair.
INHERENT POWERS OF THE COURT

Before we leave the concepts of courts, we must know that the
courts of justice have what we call inherent powers. Just like the
State have certain inherent powers, namely; Police power, power
of taxation, and power of eminent domain.
As a matter of fact under the Civil Code, when the law is silent, you
decide it based on what is just and fair, thus, the saying EQUITY
FOLLOWS THE LAW. In the Philippines you cannot distinguish
sometimes the principle of law and the principle of equity because
principles of equity are also written in the law. Example: The
principles of estoppel, laches or solutio indebiti are no longer
purely principles of equity since they are also found in our law.
Under the Civil Code, when there is no applicable law, courts still
have to decide according to customs and general principles.
Their very existence automatically necessitates the existence of

these powers.
Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court provides:
ESTOPPEL
Section 5. Inherent powers of courts. Every

court shall have the power:
Estoppel is an equitable doctrine which means that it is not fair that

you disown your own representation after misleading somebody.
But if you look at the Civil Code, there is a chapter on estoppel. So
if you apply estoppel, you cannot say that you are applying a
principle not found under the law.
(a) to preserve and enforce order in its

immediate presence;
(b) to enforce order in proceedings before it,
or before a person or persons empowered to
conduct a judicial investigation under its
authority;
LACHES
It is considered to be the half-brother of prescription because it
means if you delay a certain right then you must have no right.
That is more of equity, rather than of law.
(c) to compel obedience to its judgments

orders, and processes, and to the lawful
orders of a judge out of court, in
a
case
therein;
SOLUTIO INDEBITI
No one should enrich himself at the expense of another. That is a
principle of equity. But if you look at the Civil Code, it's there!
(d) to control, in furtherance of justice, the

conduct of its ministerial officers, and of all
other persons in any manner connected with

a case before it,

appertaining thereto;
in
every
manner
Under Section 3, Interim Rules:

Sec. 3. Writs and Processes. -
(e) to compel the attendance of persons to

testify in a case pending therein;
a) Writs of certiorari, prohibition, mandamus,

quo warranto, habeas corpus and injunction
issued by a regional trial court may be
enforced in any part of the region.
(f) to administer or cause to be administered

oaths in a case pending therein, and in all
other cases where it may be necessary in the
existence of its powers;
b) All other processes whether issued by the

RTC or MetTC, MCTC, and MTC may be served
anywhere in the Philippines, and, the last
three cases, without a certification by the
judge of the RTC.
(g) to amend and control its process and

orders so as to make them conformable to
law and justice;
(h) to authorize a copy of a lost or destroyed
pleading or other paper to be filed and used
instead of the original, and to restore, and
supply deficiencies in its records and
proceedings.
A: Under Section 3 of the Interim Rules, you have to distinguish

what kind of writ or process you are talking about:
a)
SITUATION: Suppose I have the power to decide and I render a

decision. I want to enforce the decision, how do I enforce? Well,
usually the law provides for the procedure.
If it is a writ of certiorari, prohibition, mandamus, quo

warranto, habeas corpus, injunction, it can be enforced
anywhere within the region. So at least, RTC can enforce
it within the region and it cannot enforce those writs
outside the region.
EXAMPLE: If you are illegally detained, you can ask the court to
issue a writ of habeas corpus. Now, a person is detained in Cagayan
de Oro and the family is here in Cebu City. They filed a petition for
habeas corpus here in Cebu City. Is it proper?
Q: But suppose the law does not provide for any manner to
enforce? For example a judge has rendered a decision, and the
law is silent on how to enforce it, do you mean to say that the
order is unenforceable because the law is silent.
No. Cebu City belongs to the 7th Judicial Region while Cagayan de
Oro is in the 11th or 12th Judicial Region. The law is very clear: writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus
and injunction issued by a trial court may be enforced in any part of
the region.
A: NO. Section 6 of Rule 135 answers the question.

SEC 6. Means to carry jurisdiction into effect
When by law jurisdiction is conferred on a
court or a judicial officer, all auxiliary writs,
processes and all other means to carry it into
effect maybe 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 these rules,
any suitable process or mode of proceeding
may be adopted which appears conformable
to the spirit of said law or rules.
b)
Section 3 further says, all other writs are enforceable

anywhere in the Philippines. Suppose the MTC issues a
warrant for the arrest of the accused in the criminal
case, and he fled to Baguio City, such warrant can be
enforced there. This includes summons, writs of
execution or search warrants.
ASPECTS OF REMEDIAL LAW
Q: Give the two (2) aspects of Remedial Law.
What Section 6 is trying to say is that when courts have the power
to decide, they have the power to enforce. And if the law is silent,
judges have to think of how to do it provided they conform to the
spirit of the rule. So they should not make the order useless simply
because there is no rule. That is part of their power.
A: There are 2 aspects of Remedial Law:

1.)
PUBLIC ASPECT one which affords a remedy in

favor of the State against the individual
(e.g. criminal procedure) or in favor of
the individual against the State (e.g.
habeas corpus) on the other hand,
2.)
PRIVATE ASPECT one which affords a remedy in

favor of an individual against another
individual, like the rules on civil
procedure. (Gamboas Introduction to
Philippine Law, 6th Ed., pp. 97-99)
ENFORCEABILITY OF COURT WRITS AND PROCESSES

Another provision that should be emphasized is Section 3 of the
Interim Rules.
Question: The court of Cebu issues a writ or a process. Can that
writ or process be enforced in Manila? What is the extent of the
enforceability of a writ issued by a court?

BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE

PHILIPPINES
of constitutional rights, pleading, practice, and procedure in all

courts.
The origin of our law on procedure is American. Forget the law on

procedure during the Spanish regime. But the first known ancestor
of the law on Civil Procedure was the old Act 190, otherwise known
as the Code of Civil Procedure, which was enacted on August 7,
1901 by the United States and Philippine Commission.
LIMITATIONS TO THE RULE-MAKING POWER OF THE SC

The Constitution has also placed limitations on these powers. As
currently worded, one limitation provided for by the Article is the
rules of procedure to be enacted by the SC "shall provide for a
simplified and inexpensive procedure for the speedy disposition
of cases. The second one is: the rules shall be uniform for all
courts of the same grade. And the third is: the rules shall not
diminish, increase or modify substantive rights.
And that was the law until 1940 because on July 01,1940 the SC
enacted the Rules of Court which we now call the Old Rules of
Court. That continued for another 24 years until January 01, 1964
when the SC enacted the Revised Rules of Court repealing the Old
Rules of Court. And that continued for another 33 years until July
01,1997 where the SC enacted and which took effect on that day
(July 01, 1997) the New Rules on Civil Procedure.
LIMITATIONS
1.
SUMMARY:
1.)
2.)
3.)
4.)
2.
First Law August 07, 1901 Act 190 Code of Civil

Procedure (40 years)
Second Law July 01, 1940 Old Rules of Court (24
years)
Third Law January 01, 1964 Revised Rules of Court
(33 years)
Fourth Law July 01, 1997 New Rules of Civil
Procedure.
3.
Substantive rights are created by substantive law so the Rules of

Procedure should not increase, diminish or modify them. In effect,
the Rules of Court should not amend the substantive law. It can
only interpret substantive law but should not change it completely.
Those are the limitations. With that we are now ready to tackle the
1997 rules on civil procedure.
SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE

Well of course the sources are almost the same as the prior law.
The old Rules of Court is also a source. Many provisions were taken
from the 1964 Rules, substantive law like the Civil Code and
jurisprudence. And of course SC circulars. Many circulars are now
incorporated under the new rule. So those are the main sources.
JURISDICTION IN GENERAL
The word JURISDICTION is derived from 2 Latin words: 1.) JURIS
law; 2.) DICO to speak, or to say. So, in effect, when you say
jurisdiction, literally translated, it means, I speak by the law. It
means that you are saying I speak with authority because when
you invoke the law, then your act is authorized.
SOURCES
1.
2.
3.
4.
The Rules of Court shall provide a simplified and

inexpensive procedure for the speedy
disposition of cases;
The Rules of Court shall be uniform for all courts of
the same grade; and
The Rules of Court shall not diminish, modify or
increase substantive rights.
Previous Rules of Court;

Jurisprudence;
New Civil Code;
SC Circulars
So when you say, I speak by the law you mean I will do it in the
name of the law. It connotes authority or power.
So jurisdiction implies authority or power to act.
RULE-MAKING POWER OF THE SUPREME COURT
But what act or acts is/are authorized?
The Rules of Court (1940, 1964, 1997) have all been enacted by the
SC. It is law, not enacted by Congress but enacted by the SC.
If we relate jurisdiction to courts, it means authority or the power

to hear, try and decide a case. So jurisdiction means the power or
authority of the court to hear, try and decide a case. In its
complete aspect, jurisdiction includes not only the powers to hear
and decide a case, but also the power to enforce the judgment (14
Am. Jur. 363-364) as the judgment or decree is the end for which
jurisdiction is exercised, and it is only through the judgment and
its execution that the power of the court is made efficacious and
its jurisdiction complete (21 CJS, Courts, S 9). The power to
control the execution of its decision is an essential aspect of
jurisdiction. It cannot be the subject of substantial subtraction
and the most important part of the litigation is the process of
execution of decisions (Echegaray vs. Sec. of Justice, 301 SCRA
96).
Q: What is the authority of the SC to enact a law when actually

the role of the judiciary is only to interpret the law? Is this not a
violation of the separation of powers?
A: The authority of the SC in enacting the prior rules and the
present rules is what you call its rule-making power which provision
was found in the 1935, 1973 and 1987 Constitutions. Based on the
present law, the rule-making power of the SC is expressed in Article
VIII, Section 5, paragraph [5] which is substantially the same as the
1935 and 1973 Constitutions which states that: the SC "shall
promulgate the rules concerning the protection and enforcement

Test of Jurisdiction
A: Jurisdiction pertains to the authority to hear and decide a case.

Any act of the court pursuant to such authority, including the
decision and its consequences is exercise of jurisdiction.
Since jurisdiction refers to power or authority to hear, try and

decide a case, it cannot depend on the correctness or rightfulness
of the decision made. (Century Insurance Co. v. Fuentes, 2 SCRA
1168 [1961]) Correctness or rightfulness of the decision relates to
the exercise of and not to the authority itself.
The authority to decide a case, not the decision rendered, is what

makes up jurisdiction. It does not depend upon the regularity of the
exercise of that power or upon the rightfulness of the decision
made. Where there is jurisdiction over the person and subject
matter, the resolution of all other questions arising in the case is
but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil. 245)
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 vs. Barreto, 25 Phil. 245)
Q: Why is it important to distinguish jurisdiction from exercise of

jurisdiction?
Duty of the court to determine its jurisdiction

It is the duty of the court to consider the question of jurisdiction
before it looks at other matters involved in the case. It may, and
must, do this on its own motion without waiting for the question
of jurisdiction being raised by any of the parties involved in the
proceeding (20 Am Jur 2d, Courts, S 92). Courts are bound to take
notice of the limits of their authority and they may act accordingly
by dismissing the action even thought the issue of jurisdiction is
not raised or not even suggested by counsel (Ace Publicatiions vs.
Commissioner of Customs, 11 SCRA 147)
A: Definitely, a court acting as such may commit errors or mistakes

and questioned later before a higher court. The procedure or
remedy in case of a mistake or error would be dependent on
whether it is an error of jurisdiction or an error in the exercise of
jurisdiction also known as error of judgment.
EXAMPLE: A case of murder was filed in the MTC. The accused, Ken
Sur, files a motion to quash because MTC has no jurisdiction over
cases of murder. But the court denied the motion to quash.
Meaning, the judge has decided to assume jurisdiction. What is the
error committed?
Q: What is the effect if the court has no jurisdiction or of absence

or lack of jurisdiction?
When the court without authority assumes authority over the case
that is called ERROR OF JURISDICTION the court committed an
error of jurisdiction.
A: If a court has no jurisdiction, it has no power or authority to try

a case and because it has no authority it must not exercise it.
Exercise of absent authority or power is necessarily nothing. Thus,
without jurisdiction, the entire proceedings would be null and
void.
EXAMPLE: Suppose the case for murder is filed in the RTC where
the court has jurisdiction. But in the course of the trial, it
committed mistakes like the court misinterpreted or misapplied
the provision of the RPC or the Indeterminate Sentence Law. What
error is committed?
The only recourse for the court, absent jurisdiction, is to dismiss

the case motu proprio or on motion for without authority it
cannot act.
Obviously the RTC has the authority to hear and decide the case
and therefore acted with authority or jurisdiction. There is no error
of jurisdiction.
Q: What about if it has jurisdiction?

A: It is the duty of the court to exercise the jurisdiction conferred
upon it by law and to render a decision in a case properly
submitted to it. Failure to do so may be enforced by way of a
mandamus proceeding (20 Am Jur. 2d, S 93).
However, in the exercise of such authority it committed a mistake,

thus, the error committed is error in the exercise of jurisdiction,
also known as error of judgment.
Constitutional Guarantee of Access to Courts and Jurisdiction
Q: Is the proceeding null and void?
The Constitutional guarantee of access to courts refers to courts

with appropriate jurisdiction as defined by law. It does not mean
that a person can go to any court for redress of grievances
regardless of the nature or value of his claim. (Santos III v.
Northwest Airlines, 210 SCRA 256 [1992])
A: NO. What is committed is an error in the exercise of jurisdiction

and if not corrected the error can become final and executory. In
other words, if not objected to, it will stay.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
JURISDICTION vs. EXERCISE OF JURISDICTION
Distinguish ERROR OF JURISDICTION from ERROR OF JUDGMENT.
Q: Distinguish jurisdiction from exercise of jurisdiction.

1.)
When a court acquires jurisdiction over the subject

matter, the decision or order on all other
questions arising in the case is but an exercise

of jurisdiction; Errors which the court may

commit in the exercise of such jurisdiction, like
errors of procedure or mistakes in the court's
findings, are merely ERRORS OF JUDGMENT;
whereas,
Q: Now, if the case is filed and is assigned to Branch 8, can that

case later be transferred and continued in Branch 9?
A: YES, because you never left the same court. You are still in the
same court. This is because jurisdiction is not with the judge. It is
with the court itself.
When a court takes cognizance of a case over the

subject matter of which it has no jurisdiction,
or acts in excess of jurisdiction or with grave
abuse of discretion amounting to lack of
jurisdiction, the court commits an ERROR OF
JURISDICTION.(GSIS vs. Oliza 304 SCRA 421).
2.)
3.)
But there is only one branch of RTC-Bogo, can RTC-Cebu City take
jurisdiction over its cases?
No because they are different courts and jurisdiction is attached to
the court.
When the court acts without authority (error of

jurisdiction) such act would be null and void or at least
voidable, but if the court has authority but commits a
mistake in the exercise of such authority (error of
judgment) such mistake will bind unless corrected
TYPES OF JURISDICTION:
Types of jurisdiction:
1.)
ERRORS OF JURISDICTION are reviewable by the

extraordinary writ of certiorari; whereas, ERRORS OF
JUDGMENT are reviewable by appeal.
2.)
3.)
An error of judgment should be raised on ordinary appeal, not by

certiorari because certiorari is only confined to correcting errors of
jurisdiction or grave abuse of discretion. The governing rule is that
the remedy of certiorari is not available when the remedy of appeal
is available or even if available, when it will not be a speedy and
adequate remedy. And when the remedy of appeal is lost, you
cannot revive it by resorting to certiorari because certiorari is not a
substitute for the lost remedy of appeal.
4.)
Based on cases tried: General Jurisdiction and

Special or Limited Jurisdiction;
Based on the nature of the cause: Original
Jurisdiction and Appellate Jurisdiction; and
Based on the nature and extent of exercise:
Exclusive Jurisdiction and Concurrent or Coordinate
Jurisdiction;
Based on situs; Territorial jurisdiction and extraterritorial jurisdiction.
1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION

a.)
GENERAL JURISDICTION is the authority of the

court to hear and determine all actions and suits,
whether civil, criminal, administrative, real,
personal or mixed. It is very broad to hear and try
practically all types of cases. (14 Am. Jur. 249; Hahn
vs. Kelly, 34 Cal. 391)
b.)
SPECIAL or LIMITED JURISDICTION is the authority

of the court to hear and determine particular cases
only. Its power is limited. (14 Am. Jur. 249; Hahn vs.
Kelly, 34 Cal. 391)
Lack of jurisdiction and excess of jurisdiction

They are distinguished thus: the respondent 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. vs. Cheng, 509
SCRA 532).
Example: In criminal cases, the MTC has jurisdiction over offenses

where the penalty imposable does not exceed 6 years while
beyond 6 years they are triable before the RTC.
Example of excess of jurisdiction:

When the court does not conduct a pre-trial conference which is
mandatory under the rules.
If you examine the jurisdiction of the MTC, it has a limit but none
for the RTC.
Q: In whom is jurisdiction vested?
The same applies in civil cases as we shall learn.
A: Jurisdiction is vested in the court, not in the judge. A court may

be a single sala or may have several branches (multiple sala). If the
latter, each is not a court distinct and separate from the others. So,
when a case is filed before a branch, the trial may be had or
proceedings may continue before another branch or judge.
(Tagumpay vs. Moscoso, L-14723, May 29, 1959)
2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
EXAMPLE: The RTC of Cebu City is composed of several branches

22 all in all. But technically, there is only one court the RTC of
Cebu City.
a.)
ORIGINAL JURISDICTION is the power of the court

to take cognizance of a case at its inception or
commencement. (Ballentines Law Dict., 2nd Ed.,
pp. 91 and 917)
b.)
APPELLATE JURISDICTION is the power vested in a

superior court to review and revise the judicial
action of a lower court. (Ballentines Law Dict., 2nd
Ed., pp. 91 and 917) If one court has the power to

correct the decision of a lower court, the power of

this court is appellate. This is because it is
commenced somewhere else and it is just
reviewing the decision of the said lower court.
1.
2.
3.
Note that in certiorari petition, the action of the superior court is

not to correct but to annul. The power exercised by the superior
court is the power of control and supervision over an inferior court,
not appellate, that is, to limit the inferior court within its
jurisdiction, its authority.
4.
In your study of criminal procedure where you also studied the law
on jurisdiction, we studied the authority of the court over the cases
as determined by the imposable penalty; its authority to bind the
accused and the prosecution; its authority to grant the relief which
is either acquittal or conviction and over the place where the
offense charged is alleged to have been committed.
3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE

JURISDICTION
a.)
EXCLUSIVE JURISDICTION is that possessed by a

court to the exclusion of all others.
b.)
CONCURRENT or COORDINATE JURISDICTION is

that possessed by the court together with another
or other courts over the same subject matter, the
court obtaining jurisdiction first retaining it to the
exclusion of the others, but the choice of court is
lodged in those persons duly authorized to file the
action. (Villanueva vs. Ortiz, 58 O.G. 1318, Feb. 12,
1962)
The authority of the court to entertain a particular kind

of action, or
Administer a particular kind of relief depending on the
issues raised;
It may refer to the power of the court over or to bind the
parties, or
Over or to bind the property which is the subject of the
litigation.
So there are what we call elements of jurisdiction in criminal cases,

otherwise, the proceeding will be illegal. These elements are:
1.
2.
3.
Jurisdiction over the subject matter;

Jurisdiction over the person of the accused; and
Territorial jurisdiction, i.e. the case should be filed in the
place where the crime was committed.
Q: What are the elements of jurisdiction in civil cases?
Q: Are there certain types of cases or petitions where I can file it

directly with the SC or file with the CA or file it with the RTC?
A: The following:
A: YES and the best example is a petition for HABEAS CORPUS.

The SC, CA and RTC share concurrent jurisdiction to entertain
petitions for habeas corpus.
a.) Jurisdiction over the subject matter ;

b.) Jurisdiction over the person of the parties to the
case;
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
In effect, these are the instances when the SC, CA and RTC
exercise concurrent jurisdiction. There can also be concurrent
jurisdiction among branches of a multiple sala court.
Q: Now, what happens if in a particular case one of these is

missing?
A: The proceedings become questionable. The proceedings
become void. The judgment is not binding. That is the effect of
lack of jurisdiction. The proceedings are tainted with illegality and
irregularity.
Exclusionary Principle
The court first acquiring jurisdiction excludes all others.
Another principle that may be relevant is the policy of judicial
hierarchy.
A. JURISDICTION OVER THE SUBJECT MATTER
4. TERRITORIAL AND EXTRA-TERRITORIAL
Q: Define jurisdiction over the subject matter.
Territorial jurisdiction - exercised within the limits of the place

where the court is located.
A: Jurisdiction over the subject matter is the power of the court to

hear and determine cases of the general class to which the
proceedings in question belong. (Banco Espaol-Filipino vs.
Palanca, 37 Phil. 291)
Extra-territorial jurisdiction - exercised beyond the confines of

the territory where the court is located.
In other words, it is the jurisdiction over the nature of the action.

In criminal cases you have light, less grave and grave offenses. In
civil cases we have such actions as actions for sum of money,
actions not capable of pecuniary estimation, real and personal
actions, action in rem, action in personam etc. This is what we call
the NATURE or classification OF THE ACTION.
Examples: Writs of certiorari, prohibition and mandamus are

enforceable only within the region where the issuing court is
located; while a writ of execution can be enforced even outside
said territory.
ELEMENTS OF JURISDICTION IN CIVIL CASES
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:
The word jurisdiction as applied to the faculty of exercising judicial

power is used in different but related senses which are:

a)
b)
What is the nature of the action filed?

Does the court have authority to try and determine that
class of actions to which the one before it belongs?
the court has no jurisdiction, the court by itself or motu propio has
the power to dismiss.
Q: How is the subject matter or nature (class) of the action
determined?
Jurisdiction over the subject matter is not to be confused with

the term subject matter of the action.
A: It is a settled rule that jurisdiction over the subject matter is

determined by the allegations in the complaint (Baltazar vs.
Ombudsman, 510 SCRA 74) regardless of whether or not the
plaintiff is entitled to his claims asserted therein (Gocotano vs.
Gocotano 469 SCRA 328; Cadimas vs. Carrion GR No. 180394,
Sept. 29, 2008).
Lack of jurisdiction over the subject matter is the proper ground for
a motion to dismiss. This is broad enough to include the nature of
the action. The term should not be confused with the terms
subject or subject matter of the action which refer to the
physical facts, the things real or personal, the money, lands or
chattels and the like, in relation to which the suit is prosecuted
and not the delict or wrong committed by the defendant.
It does not depend upon the pleas or defenses of the defendant in

his answer or motion to dismiss. (Cardenas vs. Camus, L-19191,
July 30, 1962; Edward J. Nell Co. vs. Cubacub, L-20842, June 23,
1965; Serrano vs. Muoz Motors, L-25547, Nov. 27, 1967)
So if you talk about declaration of nullity of marriage the subject

matter of the action is the marriage of the parties involved not any
other contract but the nature of the action is that it is not capable
of pecuniary estimation; if it is for foreclosure of mortgage, the
thing or subject of the action is the property mortgaged, in specific
performance or rescission of contract, it is the contract involved
that is the subject matter of the action.
How do you determine then jurisdiction over the subject matter?

It is determined by facts alleged in the complaint and the law in
force at the time of the commencement of the action. (Mercado
v. Ubay 187 SCRA 719)
Q: How is jurisdiction over the subject matter or nature of the

action acquired?
This is true in criminal and civil cases.
A: Jurisdiction over the subject matter is conferred by law, which

may be either the Constitution or a statute(Tysons Super
Concrete, Inc. vs. Court of Appeals, 461 SCRA 435; de la Cruz vs. CA,
510 SCRA 103; Guy vs. CA, December 10, 2007), and is never
acquired by consent or submission of the parties or by their
laches. This is a matter of legislative enactment which none but the
legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar
vs. Vinson, L-18023, May 30, 1962) It cannot be acquired by an
agreement of the parties, waiver, or failure to object (silence).
Examples:
So Congress plays an important role in the exercise of judicial

power, namely:
In a civil case for collection of sum of money where the complaint

alleges that the totality of the demand is P350,000.00, the case is
properly filed with the RTC even if the defendant is able to prove
that it is only P50,000.00 for jurisdiction over the subject matter is
determined by the allegations in the complaint not the defense or
evidence presented.
A case of Serious Physical Injuries was alleged in the information

filed with the CFI which was then vested with jurisdiction over this
type of cases, even if the medical certificate attached to the
records shows that the injuries are only slight which falls under the
jurisdiction of the municipal court. The CFI may convict for slight
physical injuries. Jurisdiction was determined from the allegations
in the information. (People v. Ocaya, 83 SCRA 218[1978])
1.
It creates the rights which are sought to be protected or

enforced;
2. It defines jurisdiction over the subject matter.
Both are of course in the form of substantive laws.
Exception to the rule that jurisdiction is determined by the

allegations of the complaint
The law that confers jurisdiction refers to substantive law, not a

procedural law. It likewise does not refer to an administrative order
or circular (Malaloan vs. CA, 232 SCRA 249).
The general rule is not applied with rigidity in ejectment cases in

which the defendant averred the defense of the existence of
tenancy relationship between the parties.
Q: Suppose I will file a case against you in a wrong court. Actually

what you should do is file a motion to dismiss (or in criminal cases a
motion to quash.) but you did not. Since you did not object, you did
not file a motion to dismiss, you did not file a motion to quash, did
the wrong court acquire jurisdiction over the case?
In Ignacio vs. CFI of Bulacan (42 SCRA 89), it was held, that while
the allegations in the complaint make out a case of 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
Reform (now DARAB) (De la Cruz vs. CA 510 SCRA 103)
A: NO. Jurisdiction over the subject matter cannot be conferred by

silence of the parties or by waiver. Estoppel or waiver or silence or
failure to object cannot vest jurisdiction in the wrong court because
jurisdiction over the subject matter is conferred by law. And when
10

In Ignacio and other ejectment cases (Salandanan vs. Tizon 62 SCRA

388; Concepcion vs. CFI of Bulacan 119 SCRA 222), where tenancy
was the defense, the court went beyond the allegations of the
complaint in determining 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.
such that all its indispensable elements must be established, to

wit:
(1)
(2)
(3)
(4)
(5)
(6)
In Salmorin vs. Zaldivar, GR No. 169691, July 23, 2008, 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 MCTC.
The parties are the landowner and tenant;

The subject is agricultural land;
There is consent by the landowner;
The purpose is agricultural production;
There is personal cultivation; and
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.
The statement that jurisdiction is conferred by substantive law is
not accurate because only jurisdiction over the subject matter is
conferred by substantive law. Jurisdiction over the parties, issues
and res is governed by procedural laws.
In his Answer, the defendant alleged the existence of a tenancy

relationship between him and the plaintiff. Thus, he claimed that
the case was an agrarian matter over which the MCTC had no
jurisdiction.
No Retroactive Effect of Law on Jurisdiction

Jurisdiction being a matter of substantive law, the established
rule is that statute in force at the time of the commencement of
the action determines jurisdiction RA 7691 has no retroactive
application. (Yu Oh v. CA GR No. 125297, June 6, 2003)
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 defendants 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.
This follows the general rule on application of laws.

Q: Why is jurisdiction substantive not procedural?
A: Because the law vests, defines, regulates, authority or power.
Doctrine of Continuity of jurisdiction (Adherence of Jurisdiction)
Under this rule, jurisdiction, once it attaches cannot be ousted by
the happening of subsequent events although of such a character
which should have prevented jurisdiction from attaching in the
first instance (Ramos vs. Central Bank of the Phil. 41 SCRA 586
[1971]).
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 court, once jurisdiction has been acquired, retains that

jurisdiction until it finally disposes of the case (De La Rosa vs.
Roldan, 501 SCRA 34).
The allegation of tenancy in the defendants 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.
As a consequence of this principle, jurisdiction is not affected by a

new law placing a proceeding under the jurisdiction of another
tribunal except when otherwise provided in the statute or if the
statute is clearly intended to apply to actions pending even before
its enactment (People vs. Cawaling, 293 SCRA 267)
Thus, when RA No. 7691 expanded the jurisdiction of the first level
courts, said courts acquired jurisdiction over cases that under BP
129 were originally within the jurisdiction of the RTC. But cases
pending already with the RTC at the time of the effectivity of the
law were not affected by such new law unless the parties by
agreement, pursuant to Sec. 7 therein, agreed to transfer the
pending cases from the RTC to the lower courts especially those
which have reached the pre-trial stage.
The Court further stressed that a tenancy relationship cannot be

presumed. There must be evidence to prove the tenancy relations
11

In an action for ejectment, if 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
vs. Tiglao 53 Phil. 1)
Under this doctrine, courts will not resolve a controversy involving

a question which is within its jurisdiction and also of an
administrative tribunal, especially where the question demands
the exercise of sound administrative discretion requiring the
special knowledge and experience of said tribunal in determining
technical and intricate matters of fact. (Villaflor vs. CA, GR No.
95694, Oct. 8, 1997).
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 vs. Comelec, 289 SCRA 746)
Where a case is such that its determination requires the expertise,

specialized skills and knowledge of the proper administrative
bodies because technical matters or intricate questions of fact are
involved, then relief must be obtained in an administrative
proceeding before a remedy will be supplied by the courts even
though the matter is within the proper jurisdiction of a court. This
is the doctrine of primary jurisdiction. It applies where a claim is
originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, have been placed within the special
competence of an administrative body, in such case, the judicial
process is suspended pending referral of such issues to the
administrative body for its view. (US v. Western Pacific Railroad
Co., 352 US 59; Industrial Enterprises, Inc. v. CA, 184 SCRA 426)
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 vs. Sumaljag, 290
SCRA 568). Also, 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 vs. Bellosillo, 425 SCRA 79).
Even the finality of the judgment does not totally deprive the
court of jurisdiction over the case. What the court loses if 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 vs. Sec. of Justice, 301 SCRA 96;
Republic vs. Atlas Farms, 345 SCRA 296).
Example: Damages is claimed arising from the collision between

the claimant's vessel and that of another. Such claim can of course
be determined by the courts. But in order to enforce such claim
before the courts, there must be a determination of which vessel is
at fault. This is issue is placed within the special special
competence of the Maritime Industry Authority or Philippine Coast
Guard which administrative body regulates sea travel. Under this
situation courts should defer to the jurisdiction of such
administrative body for it has the competence to determine which
vessel is at fault. Its finding then can serve as basis or premise for
the legal consequences to be then defined by the court.
Exception to the Rule of Adherence/Continuity of Jurisdiction

1.
2.
3.
When there is an express provision in the statute on

retroactive application; or
The statute is clearly intended to apply to actions
pending before its enactment; or
The statute is curative. This means that even if
originally there was no jurisdiction, the lack of
jurisdiction may be cured by the issuance of the
amendatory decree which is in the nature of a curative
statute with retrospective application to a pending
proceeding and cures that lack of jurisdiction. Thus, in a
case, while the CFI has no jurisdiction over a complaint
for damages arising from the dismissal of a radio station
manager which was filed on August 2, 1976, PD 1367
vesting the court with jurisdiction over such type of
cases cured the lack of jurisdiction of the trial court at
the time the instant claim was filed before it. (Garcia vs.
Martinez 90 SCRA 331 [1979])
In Far East Conference v. US 342 US 570 (1952) the Court defined

the primary jurisdiction doctrine as:
A principle, now firmly established, that in cases raising issues of
fact not within the conventional expertise of judges or cases
requiring the exercise of administrative discretion, agencies
created by Congress for regulating the subject matter should not
be passed over. This is even though the facts after they have been
appraised by specialized competence serve as a premise for legal
consequences to be judicially defined. Uniformity and consistency
in the regulation of business entrusted to a particular agency are
secured, and the limited functions of review by the judiciary are
more rationally exercised, by preliminary resort for ascertaining
and interpreting the circumstances underlying legal issues to
agencies that are better equipped than courts by specialization,
by insight gained through experience, and by more flexible
procedure.
Read also Atlas Fertilizer vs. Hon. Exaltacion Navarro, 149

SCRA 432)
How Jurisdiction Over the Subject Matter is Acquired By the Court
1.
2.
It is conferred by law applicable at the time of the

commencement of the action; and
Jurisdiction must be properly invoked by filing the
complaint or information.
DOCTRINE OF PRIMARY JURISDICTION
Since the inception of the doctrine courts have resisted creating

any fixed rules or formulas for its application, in every case the
question is whether the reasons for the existence of the doctrine
are present and whether the purposes it serves will be aided by its
Statement of the Doctrine
12

application in the particular litigation. As the origin and

evolution of the primary jurisdiction doctrine demonstrate, the
reasons for the existence and the purposes it serves are two-fold:
the desire for the uniformity and the reliance on administrative
expertise. Thus, in determining whether to apply the primary
jurisdiction doctrine, we must examine whether doing so would
serve either of these purposes.
Objections to jurisdiction over the subject matter

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 (Fabian vs. Desierto, 295
SCRA 470). When 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)
These same tests were applied by our courts in the determination

of whether or not to apply the doctrine of primary jurisdiction.
Spouses Jose Abejo and Aurora Abejo, et a., v. Hon. Rafael de la
Cruz, etc. et al., 149 SCRA 654, citing Pambujan Sur United Mine
Workers v. Samar Mining Co., In., 94 Phil. 932, 941 [1954])
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. Lack of jurisdiction over the subject matter is a ground for
a motion to dismiss (Sec. 1(b), Rule 16, Rules of Court). If no motion
is filed, the defense of lack of jurisdiction may be raised as an
affirmative defense in the answer (Sec. 6, Rule 16)
See GMA Network, Inc., v. ABS-CBN Broadcasting Corporation, G.R.

No. 160703, September 23, 2005.
In Paat v. CA, 266 SCRA 167 the Court said that enforcement of
forestry laws, rules and regulations and the protection,
development and management of forest lands fall within the
primary and special responsibilities of the DENR. By the very nature
of the functions, the DENR should be given a free hand
unperturbed by judicial intrusion to determine a controversy which
is well within its jurisdiction. The assumption therefore of the
replevin suit by the trial court filed by the private respondents
constitutes an unjustified encroachment into the domain of the
administrative agencys prerogative.
Under the Omnibus Motion rule, a motion attacking a pleading like

a motion to dismiss, shall include all grounds then available, and all
objections not so included shall be deemed waived (Sec. 8 Rule 15).
The defense of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke the same in
a motion to dismiss already filed. 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, raise the lack of jurisdiction as an
affirmative defense because this defense is not barred under the
omnibus motion rule
Quasi-judicial bodies like the CSC are better equipped in handling

cases involving the employment status of employees of those in
the civil service since it is within the field of its expertise. (Paloma
v. Mora GR No. 157783, Sept. 23, 2005)
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 vs. Ramirez, 118 SCRA 399;
Francel Realty Corporation vs. Sycip 469 SCRA 424).
Doctrine of Ancillary Jurisdiction
The issue 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. 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. vs. GR No.
163445, Dec. 18, 2007).
It involves the inherent or implied power of the court to

determine issues incidental to the exercise of its primary
jurisdiction.
Under its ancillary jurisdiction, a court may determine all
questions relative to the matters brought before it, regulate the
manner in which a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be heard, direct the
disposition of money deposited incourt in the course of the
proceedings, appoint a receiver an grant an injunction,
attachment or garnishment.
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 (Vda. De Barrera vs. Heirs of
Vicente Legaspi GR No. 174346 Sept. 12, 2008).
Doctrine of Judicial Stability or Non-Interference

GR: No court has the authority to interfere by injunction with the
judgment of another court of coordinate jurisdiction or to pass
upon or scrutinize and much less declare as unjust a judgment of
another court. (Industrial Enterprises, Inc. vs. CA GR No. 88550,
April 18, 1990)
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.
Exc: The doctrine of judicial stability does not apply where a third
party claimant is involved. (Santos vs. Bayhon, GR No. 88643, July
23, 1991).
13

Objections to Jurisdiction and Estoppel by Laches
belatedly objecting to the courts jurisdiction in the event that the

judgment or order subsequently rendered is adverse to him. (Alday
v. FGU Insurance Corporation, 350 SCRA 113, 120 [2001]).
Estoppel means you cannot disown your act by which you have
misled another while laches means abandonment of a right for
failure to assert it for a long time.
In general sense, estoppel by laches is failure or neglect for an

unreasonable and unexplained length of time to do what ought to
have been done earlier. The failure to act warrants the
presumption that one has abandoned his right or that he had
acquiesced to the correctness and fairness of what has been
resolved. The doctrine of estoppel is based on public policy
intended to discourage stale claims. Estoppel is not a question of
time unlike the statute of limitations. It is rather based on the
inequity or unfairness of permitting a claim to be asserted at a
time such claim is presumed to have been abandoned. (Sps.
Guillermo Agbada and Maxima Agbada v. Inter-Urban Developers,
Inc. GR 144029, Sept. 19, 2002)
GR: You can raise your objection on jurisdiction over the subject
matter even for the first time on appeal.
The ONLY exception is when there is estoppel by laches, as laid
down in TIJAM vs. SIBONGHANOY ( Tijam vs. Sibonghanoy 23
SCRA 29, April 15, 1968).
In this case, a complaint for collection cognizable by the inferior
court was filed in the CFI. The jurisdiction was not questioned. The
CFI issued a writ of preliminary attachment but was dissolved when
the defendant filed a counterbond thru a surety. After trial, the
court rendered a judgment against the defendants. That decision
became final and a motion for execution was filed and granted.
When implemented, the writ of execution was unsatisfied so the
plaintiff moved that the writ be executed against the counterbond.
The surety filed an opposition and sought to be relieved from
liability. The motion was denied on ground that the surety was not
notified. Plaintiff then filed a second motion for execution against
the counterbond notifying the surety this time. Since the surety
failed to oppose the motion was granted. The surety moved to
quash the writ against the counterbond but was denied. The surety
went to the Court of Appeals which affirmed the order. The surety
filed a motion for extension of time to file a motion to for
reconsideration which the CA granted. However, instead of filing a
motion for reconsideration the surety filed this time a motion to
dismiss on ground that the CFI did not have jurisdiction over the
subject matter. Instead of deciding the CA certified the case to the
Supreme Court because the issue raised is purely legal.
The fact pattern common among those cases wherein the Court
invoked estoppel to prevent a party from questioning jurisdiction
is a partys active participation in all stages of a case, including
invoking the authority of the court in seeking affirmative relief
and questioning the courts 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 Lao vs. Republic 479 SCRA 439: A party
who has invoked the jurisdiction of the court over a particular
matter to secure affirmative relief cannot be permitted to
afterwards deny the same jurisdiction to escape liability.
The Supreme Court frowns upon the undesirable practice of
submitting ones 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 vs. ALS Management and
Development Corporation, 427 SCRA 564).
The Court emphatically declared: The facts of the case show that
from the time the Surety became a quasi-party on July 31, 1948, it
could have raised the question of the lack of jurisdiction of the
Court of First Instance of Cebu to take cognizance of the present
action by reason of the sum of money involved which, according to
the law then in force, was within the original exclusive jurisdiction
of inferior courts. It failed to do so. Instead, at several stages of the
proceedings, in the court a quo as well as in the CA, it invoked the
jurisdiction of said courts to obtain affirmative reliefs and
submitted its case for a final adjudication on the merits. It was only
after an adverse decision was rendered by the CA that it finally
woke up to raise the question of jurisdiction. Were we to sanction
such conduct on its part we would in effect be declaring as useless
all the proceedings had in the present case since it was
commenced on July 19, 1948 and compel the judgment creditors to
go up their Calvary once more. The inequity and unfairness of this
is not only patent but revolting.
Bar by Estoppel Is An Exception and Not the General Rule

The doctrine laid down in Tijam is the exception to, and not the
general rule (Pangilinan v. CA, 321 SCRA 51, 59 [1999]).
Estoppel by laches may be invoked to bar the issue of jurisdiction
only in cases in which the factual milieu is analogous to that of
Tijam.
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 (Regalado vs. Go, GR No. 167988,
February6, 2007)
In other words, while jurisdiction as a rule, may be raised at any

stage of the proceedings (Panganiban vs. CA, 321SCRA 51, 59
[1999]), a party may be stopped from raising such questions if he
has actively taken part in the very proceedings which he questions,
Inspite of Tijam and subsequent cases which invoked it, the rule
that the lack of jurisdiction over the subject matter may be raised
14

at any stage of the proceedings, even on appeal, still remains the

prevailing rule and Tijam should be confined only to situations
prevailing in a particular case viewed in the light of the special
circumstances surrounding it.
Q: Should the complaint be dismissed on said ground? Why?

A: No. It is a recognized procedural rule that jurisdiction over the
plaintiff is acquired by his/her filing of the complaint in court. By
filing the complaint through his/her counsel, X invoked the
jurisdiction of the court over his person.
JURISDICTION OVER THE PERSON (PARTIES)

Q: Define jurisdiction over the person.
As to Defendant
A: Jurisdiction over the person is the power to render a personal

judgment against a party to an action or proceeding through the
service of process or by voluntary appearance of a party during
the progress of a cause. (Banco Espaol-Filipino vs. Palanca, 37
Phil. 291)
Jurisdiction over the person of the defendant is required only in

action in personam (Asiavest Limited vs. CA, 296 SCRA 539).
Jurisdiction over the person of the defendant is not a prerequisite
in an action in rem and quasi in rem (Gomez vs. CA 425 SCRA 98;
Biaco vs. Phil. Countryside Rural Bank 515 SCRA 106.
It is the power of the court to bring before it persons to be

affected by the judgment so as to give him an opportunity to be
heard, and to render a judgment binding upon his person.
(21C.J.S., Courts, Sec. 11, 1990)
Jurisdiction Over the Person of the Defendant in Actions in

Personam, How Acquired
Jurisdiction over the person of the defendant is obtained either by
a valid service of summons upon him or by his/her voluntary
submission to the courts authority. (Ang Ping vs. CA, 310 SCRA
343, 349 [1999]; Davao Light vs. CA)
Q: In criminal cases, how does the court acquire jurisdiction over

the person of the accused?
A: By having him
The service of summons is intended to give official notice to the

defendant or respondent that an action has been commenced
against him. He is thus put on guard as to the demands of the
plaintiff as stated in the complaint. The service of summons is an
important element in the operation of a courts jurisdiction upon
a party to a suit because it is the means by which the court
acquires jurisdiction over his person. Without service of
summons, or when the service is improper, the trial and the
judgment being in violation of due process, are both null and
void. (Avon Insurance PLC v. CA, 278 SCRA 312, 325 [1997])
(1) arrested;
(2) by service of the warrant of arrest; or
(3) by his voluntary surrender.
Q: Even if he is not arrested, can the court try an accused?
A: Of course not, because the court has not acquired jurisdiction
over his person. There must first be an arrest or surrender. The
accused can post bail and be released but if he jumps bail there can
be trial in absentia. There will be a valid decision because the court
has already acquired jurisdiction. Of course we cannot enforce the
decision until we catch him.
The mode of acquisition of jurisdiction over the plaintiff and the

defendant applies to both ordinary and special civil actions like
mandamus or unlawful detainer cases (Bar 1994).
How does the court acquire jurisdiction over the person?
First Instance: UPON SERVICE ON HIM OF COERCIVE
In civil cases, it is also a must that the court acquires jurisdiction

over the person of the parties. The manner by which the court
acquires jurisdiction over the parties depends on whether the
party is the plaintiff or the defendant.
PROCESS IN THE MANNER PROVIDED BY LAW

The first instance when a court acquires jurisdiction over the
person of the defendant is through a service upon him of the
appropriate court process which in civil law is called service of
summons. This is the counterpart of warrant of arrest in criminal
procedure.
As to Plaintiff
Jurisdiction over the person of the plaintiff is acquired by his/her
filing of the complaint or petition. By doing so, he submits
himself/herself to the jurisdiction of the court. (Davao Light &
Power Co. Inc. v. CA, 204 SCRA 343, 348 [1991])
So if the defendant was never served with summons, any judgment

rendered by the court will not bind him. Even if he is the loser in
the case, judgment cannot be enforced because the court did not
acquire jurisdiction over his person.
Example: X, a resident of Melbourne, Australia, presented a

complaint against Y, a resident of Manila, before the CFI of Manila
for accounting and damages. X never came to the Philippines to file
the suit and is only represented in this case by counsel. Y files a
motion to dismiss the complaint on the ground that the court
acquired no jurisdiction over the person of X.
The same principle holds true in criminal cases. A court cannot try
and convict an accused over whose person the court never
acquired jurisdiction. In criminal cases, the court acquires
jurisdiction over the person through the issuance and service of a
warrant of arrest. The warrant cannot have its effect even if it was
15

issued, if the same had not been served, i.e. by effecting the arrest
of the accused by virtue of a warrant.
affirmative relief except when the relief is for the purpose of

objecting to the jurisdiction of the court over the person of the
defendant.
Q: In criminal cases, how can the warrant of arrest be effected?

Certain actions which could be construed as voluntary appearance
are:
A: Once an information has been filed in court, the court issues a

warrant. Then, the arresting officer will arrest the accused. The
court acquires jurisdiction by ENFORCEMENT OF SERVICE for
effective arrest of the accused pursuant to the warrant of arrest.
1.)
2.)
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE
3.)
JURISDICTION OF THE COURT
4.)
Another way to acquire jurisdiction over the person of the accused

even if the accused is not arrested is through VOLUNTARY
SURRENDER. Since there is no more need for the warrant, the court
will recall the same.
5.)
6.)
In civil cases, it is the voluntary submission of the defendant to the

jurisdiction of the court.
when the defendants counsel files the corresponding

pleading thereon;
when the defendant files a motion for reconsideration
of the judgment by default;
when the defendant files a petition to set aside the
judgment of default;
when the defendant and plaintiff jointly submit a
compromise agreement for the approval of the court;
when the defendant files an answer to the contempt
charge;
when the defendant files a petition for certiorari
without questioning the courts jurisdiction over his
person (Navale v. CA, 253 SCRA 705, 709, 710, 709-712
[1996])
Objections to jurisdiction over the person of the defendant
Q: Defendant was served with summons improperly or irregularly

therefore, he could question the jurisdiction of the court over his
person. But instead, he did not question the jurisdiction of the
court despite the defective service of court process. Did the court
acquire jurisdiction over the person of the defendant?
An objection to the jurisdiction over the person of the defendant

may be raised as a ground for a motion to dismiss (Sec. 1(a) Rule
16). If no motion to dismiss has been filed, the objection may be
pleaded as an affirmative defense in the answer (Sec. 6 Rule 16).
If a motion to dismiss has been filed, the objection to the 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 defense of lack of jurisdiction over the
person of the defendant is not one of those defenses which are
not deemed waived if not raised in the motion to dismiss. Only
lack of jurisdiction over the subject matter, litis pendentia, res
judicata and prescription are not waived (Sec. 1 Rule 9 in relation
to Sec. 8 Rule 15).
A: YES, because jurisdiction over the person can be acquired by:

a.) waiver;
b.) consent; or
c.) lack of objection by the defendant. (MRR Co. vs.
Atty. Gen. 20 Phil. 523)
This is unlike the jurisdiction over subject matter wherein the case
could be dismissed upon filing in the wrong court. The SC said that
when you remained silent despite the defects, your silence has
cured the defect. Meaning, the jurisdiction over your person was
acquired by waiver, or consent, or lack of objection.
Effect of pleading additional defenses aside from lack of

jurisdiction over the person of the defendant
Q: Distinguish jurisdiction over the subject matter from jurisdiction

over the person of the defendant?
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 vs. Kerr 18
SCRA 207; WANG Laboratories VS. Mendoza 156 SCRA 44).
A: Lack of jurisdiction over the person of the defendant may be

cured by waiver, consent, silence or failure to object, whereas
jurisdiction over the subject matter cannot be cured by failure to
object or by silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20
Phil. 523)
Voluntary Appearance as Voluntary Submission To Courts
Jurisdiction
The above rule was re-examined in La Naval Drug Corporation vs.

CA 236 SCRA 78). The pronouncements in said case are now
embodied in Sec. 20 of Rule 14 which provides: ****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.
Voluntary appearance must be the kind that constitutes voluntary

submission to the courts jurisdiction. Voluntary submission to the
courts jurisdiction cannot be inferred from the defendants mere
knowledge or existence of a case against him/her. In general, the
form of appearance that would be construed as a voluntary
submission to the courts jurisdiction is an appearance that seeks
16

C. JURISDICTION OVER THE RES
Acquisition of jurisdiction over the res by actual seizure is

exemplified by an attachment proceeding where the property is
seized at the commencement of the action or at some subsequent
stage in the action. It is also acquired through a legal provision
which authorizes the court to exercise authority over a property
or subject matter such as suits involving a persons status or
property located in the Philippines in actions in rem or quasi in
rem. (Banco Espanol Filipino vs. Palanca 37 Phil. 921, 927 [1918];
Perkins v. Dizon; Sec. 15, Rule 14, Rules of Court.)
RES is the Latin word for thing. It is applied to an object, subject

matter (not nature of the action), status, considered as the
defendant in the action or as the object against which, directly,
proceedings are taken. (Blacks 5th Ed., 1172)
Q: Define jurisdiction over the res.
A: Jurisdiction over the res is the power or authority of the court
over the thing or property under litigation. (Perkins v. Dizon, 69
Phil. 186, 190 [1939])
In Land Registration cases or probate proceedings, jurisdiction is

acquired by compliance with procedural requisites, such as
publication.
It is the power to bind the thing.
In a petition for change of name, the title of the petition must be

complete by including the name sought to be adopted; otherwise,
the court acquires no jurisdiction over the proceedings. (Telmo vs.
Republic, 73 SCRA 29 (1976).
How is it acquired?
It is acquired either by the (a) the seizure of the property under
legal process whereby it is brought into actual or constructive
custody of the court or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective. (Macahilig vs. Heirs of Grace M. Magalit, GR No.
141423, Nov. 15, 2000)
D. JURISDICTION OVER THE ISSUES

Meaning of Issue
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. (Blacks 5th Ed.,
745 citing Muller v. Muller, 235 Cal App. 2nd 341, 45 Cal. Rptr 182,
184)
Q: A files a case for recovery of ownership against B over a piece of

land. What is the res of the case?
A: The piece of land is the res of the case.
What is the nature of the action?
How Jurisdiction Over The Issues Is Conferred and Determined
To recover ownership of real property or real action.

Q: However, res may not be tangible. For example, X is an
illegitimate child. She wants to be acknowledged by her father.
Thus, she filed a case against her father for compulsory recognition.
In order to determine whether or not a court has jurisdiction over

the issue or issues of the case, one must examine the pleadings.
Q: Define jurisdiction over the issues.
What is the res?
A: Jurisdiction over the issue is the authority to try and decide the
issues raised in the pleadings of the parties. (Reyes vs. Diaz, 73
Phil. 484)
A: The res is the status of the child because it is the object of the
litigation.
Q: Why is jurisdiction over the res important?
Q: What are pleadings?
A: Sometimes it is a substitute for jurisdiction over the person.

There are instances when the court cannot acquire jurisdiction over
the defendant like when he is abroad. But if the court acquires
jurisdiction over the res, the case may go on. Even if the court
cannot acquire jurisdiction over the person of the defendant,
jurisdiction over the res becomes a substitute over the person.
A: Rule 6, Section 1 - Pleadings are the written allegation of the

parties of their respective claims and defenses submitted to the
court for trial and judgment.
In a civil case, pleadings are written statements of the respective
positions of the parties, namely, the claims for the plaintiff and
defenses for the defendant.
In the example of action for compulsory recognition, even if the

defendant is a non-resident who is out of the country the object of
litigation is status here in the Philippines, then acquisition of
jurisdiction over the res confers jurisdiction to the court even if the
defendant is abroad. The res here is the thing or object or status
against which or in relation to which the judgment can be enforced.
EXAMPLE: X files a case for collection of sum of money against Y.

The pleading that X will file will contain the written statements of
his claim. He will narrate there for instance that Y borrowed money
from him promising to pay it on a day certain but when it became
due no payment was made despite demands so he suffered actual
loss or damage aside from moral damage.
17

By way of response, X will file his position in writing stating his

defenses like denying the loan; the promissory note is a forgery or
admitting the loan but claiming that it had already been paid or the
action has prescribed. This written statement of his position
containing his defense or defenses is a pleading called an answer.
In the answer Y can also allege claims, if he has any against the
plaintiff like the case is merely intended to harass him for which
reason he suffered damages. This is called a counterclaim, another
pleading and X can in turn file an answer to the counterclaim where
he will state his defense/s as regards the claim contained in the
counterclaim.
conferred by law and cannot be subject to the agreement of the

parties. (Vda de Victoria v. CA, GR No. 147550, Jan. 26, 2005)
1.)
Jurisdiction over the subject matter is the power to

hear and try a particular case, while
Jurisdiction over the issues is the power of the
court to resolve legal questions involved in the
case;
2.)
Based on their allegations and counter-allegations the court will
know what issues are to be resolved.
Jurisdiction over the subject matter is acquired

upon filing of the complaint, while
Jurisdiction over the issues of the case is
acquiredupon filing of the answer which joins the
issues involved in the case.
Q: So, if X says that Y borrowed money, and never paid him,

while Y, in answer states that he did borrow but already paid
it, what issue is being presented to be resolved by the court?
When An Issue Arises Even If Not Raised In the Pleadings
A: The issue is, whether the obligation is still existing or is it

already extinguished by payment. So that is how the court
will know what it will try in this case.
Although it is a rule that jurisdiction over the issue is to be

determined by the pleadings of the parties, an issue may arise in a
case without it being raised in the pleadings. This happens when
the parties try an issue with their consent. Under Sec. 5, Rule 10 of
the Rules of Court, when issues not raised by the pleadings are
tried with the express or the implied consent of the parties, they
shall be treated in all respects, as if they had been raised in the
pleadings. Thus, if evidence on a claim for salary differential is not
objected to, the Labor Arbiter correctly considered the evidence
even if the claim is not mentioned in the complaint. (Cindy and
Lynsy Garment v. NLRC, 284 SCRA 38, 45 [1998])
Q: Let us suppose that after the trial, the court said in its decision
that the obligation has been extinguished by condonation. Will that
bind?
A: No, because the parties did not raise condonation as the issue.
So the court decided that issue over which it never acquired
jurisdiction.
In other words, the court should only rule on what the parties
raised in their pleadings. That is what we call jurisdiction over the
issue.
Take note that jurisdiction over the issues in civil cases is acquired
after defendant has filed an answer. In criminal cases, jurisdiction
over the issues is acquired when the accused enters a plea of not
guilty or pleads guilty but seeks to prove a mitigating circumstance.
Jurisdiction over the issue is, therefore, conferred and determined

by the pleadings of the parties.
For a decision to be effective, the court must acquire the

jurisdiction over the subject matter, the person, the res in case the
defendant is not around, and the last is jurisdiction over the issue.
Jurisdiction over the issues may also be determined and conferred

by stipulation of the parties as when in the pre-trial, the parties
enter into stipulation of facts and documents or enter into an
agreement simplifying the issues of the case (Sec. 2 Rule 18)
JURISDICTION OVER THE SUBJECT MATTER
Jurisdiction over the issues may also be conferred by waiver or

failure to object to the presentation of evidence 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).
THE SUPREME COURT

The highest court of the land is the Supreme Court. It was not
affected by the Judiciary Law (BP 129) which reorganized the
judiciary in 1983. Being a constitutional court, its jurisdiction is
found in the fundamental law itself. The SC is both an original and
appellate court.
Jurisdiction Over the Subject Matter Distinguished from

Jurisdiction Over the Issues
Composition
Jurisdiction over the issues is conferred by the pleadings and by the

express (stipulation) or implied (failure to object to evidence)
consent of the parties because an issue not duly pleaded may be
validly tried and decided by the court as long as there is no
objection from the parties. Jurisdiction over the subject matter is
It is composed of the Chief Justice and 14 Associate Justices.

The Constitution ordains that the President appoints the members
of the SC and judges of lower courts from a list of at least three
18

nominees prepared by the JBC for every vacancy and requires the
President to issue appointments, for lower courts, within 90 days
from submission of the list (Art. VIII, Sec. 9) and to fill the vacancy
of the SC within 90 days from its occurrence. (Art. VIII Sec. 4(1). All
such appointments need no confirmation. (Sec. 9)
c.)
d.)
e.)
f.)
Divisions and En Banc

The SC sits either en banc or in divisions of 3, 5 or 7 members. At
present, it has 3 divisions of 5 members each.
g.)
A decision or resolution of a division, when concurred in by a
majority of its members who actually took part in the deliberations
on the issues in a case and voted thereon, and in no case without
the concurrence of at least 3 of such members, is a decision or
resolution of the SC. (Sec. 4(3) Art. VIII Constitution).
h.)
The Court en banc is not an appellate court to which decisions or

resolutions of a division may be appealed. (Circular No. 2-89)
i.)
No doctrine or principle of law laid down by the court in a decision

rendered en banc or in division may be modified or reversed except
by the court sitting en banc. (Sec. 4(3))
j.)
Principal Functions of the Supreme Court

a.
b.
c.
How a Case Before a Division is Referred to the Court en banc

At any time after a Division takes cognizance of a case and before a
judgment or resolution therein rendered becomes final and
executor, the Division may refer the case en consulta to the court
en banc which, after consideration of the reasons of the division for
such referral, may return the case to the Division or accept the case
for decision or resolution.
Article VIII, Section 5, paragraph 1 of the 1987 Constitution

enumerates the ORIGINAL jurisdiction of the SC:
Section 5. The Supreme Court shall have the
following powers:
[1] Exercise original jurisdiction over cases
affecting ambassadors, other public ministers
and consuls, over petitions for certiorari,
prohibition, mandamus, quo warranto, and
habeas corpus.
A resolution of the Division denying a partys motion for referral to

the Court en banc of any division shall be final and not appealable
to the Court en banc.
Note that the foregoing provision does not define the

original jurisdiction of the SC as exclusive, hence it can
be concurrent or exclusive.
When a decision or resolution is referred by a division to the Court

en banc, the latter may in the absence of sufficiently important
reasons decline to take cognizance of the same, in which case, the
decision or resolution shall be returned to the referring Division.
(Circular No. 2-89 effective March 1, 1989)
When is it exclusive and when concurrent?

Original Exclusive
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions
for the issuance of writs of certiorari, prohibition and mandamus
as defined in Rule 65 against the following:
En Banc Cases
In a resolution dated February 23, 1984, the following are
considered en banc cases:
b.)
Adjudication (Judicial Power)

Administration or Disciplinary power
Rule-making (Rule-making Power)
ORIGINAL JURISDICTION OF THE SUPREME COURT
Cases assigned to a Division including motions for reconsideration

which in the opinion of at least 3 members merit the attention of
the court en banc and are accepted by the majority vote of the
actual members of the court en banc may be considered as en banc
cases.
a.)
Cases raising novel questions of law;

Cases affecting ambassadors, public ministers and
consuls;
Cases where a doctrine or principle laid down by the
court en banc or in division may be modified or
reversed;
Cases assigned to a division including motions for
reconsideration which in the opinion of at least 3
members merit the attention of the Court en banc
and are acceptable to a majority vote of the actual
membership of the Court en banc;
All other cases as the Court en banc by a majority of its
actual membership may deem of sufficient
importance to merit its attention;
Cases where the penalty to be imposed is the dismissal
of a judge, officer, or employee of the SC,
disbarment of a lawyer, or suspension of any of
them for a period of more than one year or a fine of
P10,000.00, or both;
Cases involving decisions, resolutions or orders of the
Sandiganbayan, Comelec, COA, or Military
Tribunals;
Habeas corpus against government or military officials;
a)
b)
c)
d)
e)
Cases in which the constitutionality or validity of any

treaty, executive agreement, law, ordinance or
executive order or regulation is in question;
Criminal cases in which the decision imposes the death
penalty;
19
the CA (Judiciary Act of 1948);

the COMELEC (Art. IX Sec. 7, 1987 Constitution);
COA (Art. IX Sec. 7 1987 Constitution; and
Sandiganbayan (PD No. 1606);
Court of Tax Appeals because it has now the same rank as
the CA by virtue of RA 9282.

a)
All
cases
in
which
the
constitutionality or validity of any
treaty, international or executive
agreement, law, presidential decree,
proclamation,
order,
instruction,
ordinance, or regulation is in question.
Original Concurrent
A.
With CA T he cases where its original jurisdiction is

CONCURRENT with the CA are: petitions for the issuance of
writs of certiorari, prohibition, mandamus against the
following:
the CSC (RA No. 7902);
Central Board of Assessment Appeals (PD No. 464; BP Blg.
129; RA No. 7902);
NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494;
RA No. 7902) or the Secretary of Labor under the Labor
Code.
Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
Hinog vs. Melicor, 455 SCRA 460)
Also, issuance of writ of certiorari, prohibition and
mandamus against the RTC.
b) All cases involving the legality of any

tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
B.
CONCURRENT with the RTC are those actions affecting

ambassadors and other public ministers and consuls (Sec.
21[2] BP Blg 129; Art. VIII Sec. 5 1987 Constitution).
e) All cases in which an error or question

of law is involved.
C.
CONCURRENT with the CA and RTC are those involving

habeas corpus, quo warranto, and writs of certiorari,
prohibition, and mandamus against inferior courts and bodies
(Secs. 9[1], 21[2]2, BP Blg. 129; Art. VIII Sec. 5, 1987
Constitution).
a.
b.
c.
d.
e.
c) All cases in which the jurisdiction of

any lower court is in issue.
d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
If (a), (b), and (c) also involve questions

of facts or mixed questions of fact and
of law, the aggrieved party shall appeal
to the Court of Appeals; and its final
judgment may be appealed to the
Supreme Court. (Subpar 4, Third Par.
Sec. 17, Judiciary Act or RA 544)
For example, a petition for mandamus against the MTC of

Cebu City can be filed with the SC, CA, or RTC although the
policy of the Supreme Court is that it should be filed with the
RTC based on the hierarchy of the courts. (Vergara vs. Suelto,
156 SCRA 758)
D.
E.
a)
CONCURRENT WITH CA, SANDIGANBAYAN and RTC are

petitions for issuance of writ of Amparo and petitions for
Habeas Data, where the action involves public data or
government office.
All cases in which the constitutionality or validity

of any treaty, international or executive
agreement,
law,
presidential
decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
So if the RTC, which has the power, declares the law as
unconstitutional, the same has to be appealed directly to the
SC. It cannot pass through the CA because the SC has exclusive
appellate jurisdiction regarding the matter.
Finally, with the advent of the new law (RA 8249), there is
now a CONCURRENCE between the SC and the
Sandiganbayan in so far as petitions for certiorari, prohibition,
mandamus, habeas corpus, injunction and other ancillary
writs in aid of the Sandiganbayan's APPELLATE JURISDICTION
i.e. only in connection with a case appealed to the
Sandiganbayan.
b)
All cases involving the legality of any tax, impost,

assessment, or toll, or any penalty imposed in
relation thereto.
This is related to the legality of tax cases whether a tax or
tax penalty is legal or not. However, whatever decision the
lower court gives, it has to be appealed directly to the SC.
This concurrent jurisdiction is subject to the doctrine of hierarchy

of courts (Liga ng mga Barangay National vs. Atienza 420 SCRA 562;
Lacson Hermanas Inc. vs. Heirs of Ignacio 462 SCRA 290).
c)
APPELLATE JURISDICTION OF THE SUPREME COURT
All cases in which the jurisdiction of any lower

court is in issue
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no

jurisdiction over a case. The aggrieved party, it if wants to raise
that issue, it must go to the SC. When the issue is purely
jurisdiction, the SC shall have exclusive appellate jurisdiction.
The appellate jurisdiction is found in Section 5, Paragraph (2),

Article VIII 1987 Constitution:
2) Review, revise, reverse, modify, or affirm
on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments
and orders of lower courts in:
Now, when the law says all cases in which the jurisdiction of any
lower court is in issue, the cases involve 100% pure jurisdiction as
an issue. There are no factual issues involved. If the issue of
jurisdiction is mixed with a factual issue, the appeal should be in
20

the CA without prejudice to the filing of the same with the SC later.
So, this is 100% issue of jurisdiction. No factual issue is involved.
d)
Each Commission shall decide by a majority

vote x x x. Unless otherwise provided by this
Constitution or by law, any decision, order, or
ruling of each Commission may be brought to
the Supreme Court on certiorari by the
aggrieved party within thirty days from
receipt of a copy thereof.
All criminal cases in which the penalty imposed is

reclusion perpetua or higher.
We discussed this in Criminal Procedure.
e)
All cases in which only an error or question of law

is involved.
The COMELEC, COA and the CSC act also as courts of justice. They
have powers to decide certain cases within their jurisdiction.
Election cases are covered by the COMELEC, claims against the
government, by COA and eligibility or removal from government
service of an appointive employee, by CSC.
Take note that ONLY an error or question of law is involved. So, if

there is a mixed question of law and a question of fact, appeal must
be filed with the CA. You only go to the SC if the appeal is 100%
legal. That applies to both criminal and civil cases.
Now, according to Section 7, any decision, order or ruling of these

commissions may be brought to the SC on certiorari, etc. So you
will see that the decisions of the constitutional commissions are
reviewable by the SC.
QUESTIONS OF LAW and QUESTIONS OF FACT

There is a question of law when the doubt or difference arises as to
what the law is on a certain set of facts. There is a question of fact
when the doubt or difference arises as to the truth or falsehood of
the alleged facts (Sps. Santos vs. CA 337 SCRA 67).
However, Congress amended the Judiciary Law particularly Section

9 on the jurisdiction of the CA by now making decisions of the CSC
no longer appealable to the SC directly but appealable to the CA.
So based on the present law, out of the three constitutional
commissions, the only ones whose decisions are appealable
directly to the SC are those of the COMELEC and the COA
Example: Where the question 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 the set of facts the issue is
whether or not the law on double sales applies, there is a question
of law.
What is the basis for Congress to pass such a law where a decision
of a constitutional body (CSC) is reviewable by a non-constitutional
body?
Under the Constitution, decisions of the constitutional commissions
are appealable to the SC. Does Congress have the power to change
that by making it appealable to the CA?
When the issue involves a review of the evidence, it involves a

question of fact because evidence, as defined, is the means,
sanctioned by the rules, of ascertaining in a judicial proceeding the
truth respecting a matter of fact. (Sec. 1 Rule 128)
Yes because the provision, it says: Unless otherwise provided by

this Constitution or by law.. Meaning, the decisions are appealable
to the SC unless otherwise provided by law. The Constitution itself
gave Congress the power to change it.
In an action for declaration of nullity of marriage the basis is

psychological incapacity. The RTC/Family Court dismissed the case
finding that there was no psychological incapacity. If the plaintiff
wants to appeal from that judgment, can she appeal directly to the
SC? Is it a question of fact or law?
SC as Presidential Electoral Tribunal

Article VII, Section 4, last paragraph, 1987 Constitution:
No. The appeal should be to the CA. The issue raised is a question
of fact because there is need to review the evidence to resolve it.
The Supreme Court, sitting en banc, shall be

the sole judge of all contests relating to the
election, returns, and qualifications of the
President or Vice-President, and may
promulgate its rules for the purpose.
Suppose the court nullified the marriage on ground of impotence

and the defendant wants to appeal because he wants to raise the
issue whether or not impotence is a ground for declaration of
nullity of marriage this would be a question of law because there is
no need for review of the evidence to resolve it. So appeal is to the
SC.
If theres an electoral protest for the President and Vice-President,

the matter is not to be decided by the COMELEC but by the SC
acting as the Presidential Electoral Tribunal.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE
Judicial Review of Presidential Proclamation of Martial or

Suspension of the Privilege of the Writ of Habeas Corpus
JURISDICTION OF THE SUPREME COURT

Article IX, Section 7, paragraph (a), 1987 Constitution:
Article VII, Section 18 (3), 1987 Constitution Commander-in-Chief

Clause
21

The Supreme Court may review, in an

appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the
proclamation of martial law or the
suspension of the privilege of the writ or
extension thereof, and must promulgate its
decision thereon within thirty days from its
filing.
the Court of Appeals are not generally reviewable by the SC

(Sarmiento vs. Yu 497 SCRA 513). Also, factual findings of the trial
court, particularly when affirmed by the Court of Appeals, are
generally binding on the Court (Tan vs. GVT Engineering Services
498 SCRA 93; Office of the Ombudsman vs. Lazar0-Baldazo GR No.
170815 February 2, 2007).
It is not the function of the SC to determine the weight of the
evidence supporting the assailed decision (JR Blanco vs. Quasha
318 SCRA 373). 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 CA (Office of the Ombudsman vs. Tongson 499
SCRA 567).
So, the SC, in an appropriate proceeding filed by any citizen review

the sufficiency of the factual basis of the proclamation of martial
law. Meaning, the SC can inquire into the basis on why martial law
is declared.
This is intended to prevent the Supreme Court from invoking the
Political Question doctrine laid down in many earlier cases that it is
the prerogative of the President to determine, at his discretion, the
sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof.
Exceptions
While it is settled rule that the SC 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 SC, namely:
Congress and Jurisdiction of the SC

1.)
Article VIII, Section 2, 1987 Constitution:
a.)
The Congress shall have the power to define,

prescribe, and apportion the jurisdiction of
the various courts but may not deprive the
Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
b.)
c.)
d.)
e.)
f.)
Congress may change or even remove the jurisdiction of the RTC or

CA. The law can change them because jurisdiction over the subject
matter is conferred by law. However, Congress does not have the
power to lessen or deprive the Supreme Court of its jurisdiction
under Section 5, Article VIII.
2.)
g.)
h.)
i.)
However Article VI, Section 30 states:

j.)
No law shall be passed increasing the appellate

jurisdiction of the Supreme Court as provided in
this Constitution without its advice and
concurrence.
k.)
Thus , Congress cannot lessen but it can increase the SCs powers
and jurisdiction, PROVIDED it is with the latter's advice and
concurrence.
So more or less, these are the scattered provisions of the
Constitution dealing with the SCs jurisdiction.
The Supreme Court is not a trier of facts
when the findings are grounded entirely on speculation,

surmises or conjectures;
when the inference made is manifestly mistaken, absurd
or impossible;
when there is grave abuse of discretion;
when the judgment is based on a misapprehension of
facts;
when the findings of facts are conflicting;
when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both appellant and appellee;
when the findings are contrary to the trial court;
when the findings are conclusions without citation of
specific evidence on which they are based;
when the facts set forth in the petition, as well as in the
petitioners main and reply briefs, are not disputed
by the respondent;
when the findings of fact are premised on the supposed
absence of evidence and contradicted by the
evidence on record; and
when the CA manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly
considered, could justify a different conclusion
(Cristobal Cruz vs. Cristobal 498 SCRA 37; Heirs of
Dicman vs. Carino 490 SCRA 240; Safeguard Security
Agency Inc. vs. Tangco 511 SCRA 67; De Los Santos
vs. Elizalde 514 SCRA 14; NPC vs. De la Cruz GR No.
156093 Feb. 2, 2007; Spouses Yu vs. Ngo Yet Te GR
No. 155868 Feb. 6, 2007).
JURISDICTION OF THE COURT OF APPEALS
There are important principles worthy of note in relation to the

jurisdiction of the Supreme Court.
BRIEF HISTORY OF THE COURT OF APPEALS
The SC is not a trier of facts which means that passing upon a

factual issue is not within the province of the Court (Romys
Freight Service vs. Castro, 490 SCRA 160). The findings of facts of
The jurisdiction of the CA is now governed by BP 129 or the

Judiciary Reorganization Act of 1980. BP 129 was passed in 1983 by
the former Batasang Pambansa which practically abolished all the
regular courts at that time, and also the special courts except the
22

SC which cannot be abolished by Congress. What was also spared

was the Court of Tax Appeals which was likewise not affected.
RA 7902 restored the power of the CA to try cases and conduct

hearings, receive evidence, and perform any and all acts necessary
to resolve factual issues raised in cases falling within the original
and appellate jurisdiction, including the power to grant new trials
or further proceedings (without limiting the motion for new trial
based on newly discovered evidence). Trials or hearings in the CA
must be continuous and completed within 3 months unless
extended by the Chief Justice.
In lieu of these, other courts were created. The constitutionality of

BP 129 was challenged as violative of the security of tenure of the
judges. But its constitutionality was sustained in the case of DELA
LLANA vs. ALBA, 112 SCRA 294.
The CA is composed of over 69 justices after new divisions were
created, one based in Cebu City and the other in Cagayan de Oro
City pursuant to RA 8246.
The essential features of the CAs jurisdiction are as follows:

ORIGINAL JURISDICTION OF THE COURT OF APPEALS
They decide cases by a division of three. They sit en banc only for
administrative matters not to decide a case as it would be
impractical considering their number.
Original Concurrent
[1] Section 9, paragraph 1, BP 129
Before BP 129, the court was also called the Court of Appeals, the
counterpart of the present CA, though the CA now is different and
more powerful than the old one. BP 129 abolished the old CA and
created another court which was called the INTERMEDIATE
APPELLATE COURT (IAC).
Section 9 Jurisdiction The Court of Appeals shall

exercise:
(1) Original jurisdiction to issue writs of
mandamus, prohibition, certiorari, habeas corpus,
and quo warranto, and auxiliary writs or processes
whether or not in aid of its appellate jurisdiction.
So, from the 1983 to 1986, it was called the IAC. After the EDSA
Revolution, President Aquino, pursuant to her law-making powers,
issued E.O. #33 amending the Judiciary Law and changed the name
of IAC to CA (referring to the jurisdiction of the IAC).
Note: Refer to discussion the original concurrent jurisdiction of the

SC with the CA; with the CA and RTC etc.
Many people thought that the CA of President Aquino under E.O.

#33 is actually the IAC under another name only, but in a case
decided by the SC, reported in
The cases where its original jurisdiction is CONCURRENT with the

SC are: petitions for the issuance of writs of certiorari, prohibition,
mandamus against the following:
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO

210 SCRA 589 [1992]
HELD: It is the holding of the Court that the present Court of

Appeals is a new entity, different and distinct from the Court
of Appeals or the Intermediate Appellate Court existing prior
to Executive Order No. 33, for it was created in the wake of
the massive reorganization launched by the revolutionary
government of Corazon C. Aquino in the aftermath of the
people power (EDSA) revolution in 1986.
the CSC (RA No. 7902);

Central Board of Assessment Appeals (PD No. 464; BP Blg.
129; RA No. 7902);
NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494; RA
No. 7902) or the Secretary of Labor under the Labor Code.
Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
Hinog vs. Melicor, 455 SCRA 460)
Also, issuance of writ of certiorari, prohibition and
mandamus against the RTC.
CONCURRENT with the SC and RTC are those involving habeas

corpus, quo warranto, and writs of certiorari, prohibition, and
mandamus against inferior courts and bodies (Secs. 9[1], 21[2]2, BP
Blg. 129; Art. VIII Sec. 5, 1987 Constitution).
Section 5 of EO 33 also amended Sec. 9 of BP 129 to read as

follows:
The Court of Appeals shall have the power to
receive evidence and perform any and all acts
necessary to resolve factual issues raised in (a)
cases falling within its original jurisdiction, such as
actions for annulment of judgments of regional trial
courts, as provided in paragraph (2) hereof; and in
(b) cases falling within its appellate jurisdiction
wherein a motion for new trial based only on the
ground of newly discovered evidence is granted by
it.
For example, a petition for mandamus against the MTC of Cebu City
can be filed with the SC, CA, or RTC although the policy of the
Supreme Court is that it should be filed with the RTC based on the
hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA 758)
Q: Being concurrent, what will happen if such a case is filed
simultaneously in the CA and SC?
A: The consequence is found in Section 17 of the Interim Rules. In
other words, the Interim Rules are still intact.
So, Section 9 of BP 129, which defines the second highest court of

the land, has been amended by E.O. #33. In February 1995, it was
amended again by RA 7902, known as The Act expanding the
jurisdiction of the CA.
Interim Rules, Sec. 17. Petitions for writs of

certiorari, etc. - No petition for certiorari,
23

mandamus, prohibition, habeas corpus or

quo warranto may be filed in the IAC if
another similar petition has been filed or is
still pending in the SC. Nor may such petition
be filed in the SC if a similar petition has been
filed or is still pending in the IAC, unless it is
to review the action taken by the IAC on the
petition filed with it. A violation of this rule
shall constitute contempt of court and shall
be a cause for the summary dismissal of both
petitions, without prejudice to the taking of
appropriate action against the counsel or
party concerned.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now,

if you will analyze paragraph 3, you will notice that the CA is a
powerful court because it has exclusive appellate jurisdiction over
all final judgments, decisions, resolution, orders or awards of RTCs.
So as a general rule, if the RTC, anywhere in the country renders a
decision and you want to appeal, whether civil or criminal, chances
are it will go the to CA. It is a powerful court, because it covers all
RTCs and the appellate jurisdiction is exclusive.
And not only RTCs. The law says and quasi-judicial agencies,
instrumentalities, boards or commissions Not only decisions of
the RTC but also of quasi-judicial agencies or bodies, also called
administrative bodies.
Administrative bodies are actually part of the executive branch but
they act just like courts of justice. They can decide cases and there
are hundreds of administrative agencies in the Philippines. And
therefore, if you lose a case before anyone of these bodies, or
tribunals, you appeal the decision not with the SC, but to the CA.
Original Exclusive
(2) Exclusive jurisdiction over actions for
annulment of judgments of Regional Trial
Courts;
The amendments by RA 7902 is even more specific by adding this

phrase, including the SEC, SSS, the Employees Compensation
commission and the Civil Service Commission (CSC).
Q: Actions for annulment of judgments of RTCs, is this similar to an

appeal? Is this the same as appealing the decision of the RTC to the
CA?
That is the addition.
A: No, because in appeal, you are invoking the appellate

jurisdiction of the CA. Here in paragraph 2, it is not appellate but
original jurisdiction. Meaning, you are filing an action before the
CA for the first time. And the nature of the action is to annul a
judgment of the RTC.
CSC Before this law was passed, under the Constitution, decisions
of the CSC are appealed to the SC together with the COMELEC and
the COA. But with the passage of RA 7902, the appeal from the
CSC has been transferred to the CA, so what is left behind in the
Constitution are the COMELEC and the COA.
The implementation is found in Rule 47 of the Rules.
Obviously, the purpose of this statute is to unburden the SC with so

many cases.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
The phrase except those falling within the appellate jurisdiction

of the Supreme Courtmeans all cases should be appealed to
the CA except those which belong to the SC under the
Constitution. We know that already.
Paragraph 3, Sec. 9 of BP 129 defines the appellate jurisdiction of

the CA.
And also except those falling under the Labor Code of the
Philippines.
(3) Exclusive appellate jurisdiction over all

final judgments, decisions, resolutions,
orders or awards of the RTCs and quasijudicial agencies, instrumentalities, boards or
commissions, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission
and
the
Civil
Service
Commission, except those falling within the
appellate jurisdiction of the SC in accordance
with the Constitution, the Labor Code of the
Philippines under PD 442, as amended, the
provisions of this Act, and of subparagraph
(1) of the third paragraph and subparagraph
(4) of the fourth paragraph of Sec. 17 of the
Judiciary Act of 1948.
A labor case is not supposed to be filed in court but with a quasijudicial agency known as the NLRC and you start in the local level
from the Labor Arbiter, then the decisions of the Labor Arbiter are
appealable to the NLRC and then from there, where will you go?
Q: Is the decision of the NLRC appealable before the CA because it
is also a quasi-judicial agency and under the law, all decisions of
quasi-judicial agencies are supposed to be appealed to the CA.
A: NO. The decision of the NLRC is an exception except those
under the appellate jurisdiction of the SC under the Constitution
and in accordance with the Labor Code (PD 422).
NLRC decisions cannot be appealed to the CA and the only way to
elevate it is to the SC by what we call certiorari, not appeal.(This is
24

already modified in the St. Martin Funeral Homes vs. NLRC case.)
Also, decisions of the Secretary of Labor, under the Labor Code are
not reviewable by the CA, but they are reviewable directly by the
SC.
Note that under RA No. 9282, the judgments AND FINAL ORDERS
OF THE Court of Tax Appeals are no longer appealable by way of
petition for review to the CA. Judgments of the CTA rendered en
banc are appealable to the SC by way of Rule 45 (Sec. 11 RA No.
9282)
And then there is the phrase, "the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph (4) of
the fourth paragraph of Section 17 of the Judiciary Act of 1948.
Exclusive appellate jurisdiction over decisions of MTCs in cadastral

or land registration cases pursuant to its delegated jurisdiction
(Sec. 34 BP Blg. 129 as amended by RA No. 7691). This is because
decisions of MTCs in these cases cases are appealable in the same
manner as decisions of RTCs (Sec. 34 BP Blg. 129).
So, the new Judiciary Law still makes some reference to the old
law. This shows that the entire 1948 Judiciary Law has not been
totally repealed. Some provisions are still intact because of the
reference.
Power to try and conduct hearings
Now what is this subparagraph 1 of the third paragraph?
[4] Section 9, last paragraph, BP 129:
It only applies to criminal cases. EXAMPLE: A person is sentenced

to reclusion perpetua, his co-accused is sentenced to reclusion
temporal or prison mayor, and all of them will appeal, all of them
should go to the SC. Otherwise, you will be splitting the appeal into
two parts. (Modified in the People vs Mateo case as discussed in
Criminal Procedure.)
The Court of Appeals shall have the power to

try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues raised in
cases falling within its original and appellate
jurisdiction, including the power to grant and
conduct new trials or further proceedings.
Trials or hearings in the CA must be
continuous and must be completed within
three (3) months unless extended by the
Chief Justice. (As amended by RA 7902)
Subparagraph 4 of the fourth paragraph of Section 17 refers to

appeal from the RTC on pure legal question which should be filed
with the SC.
Q: Suppose there are questions of fact, or it is an appeal on
questions of fact and questions of law?
Even if the CA is not a 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], BP
129 as amended by RA 7902). The CA may pass upon factual issues
as when a petition for certiorari is filed before it (Alcazaren vs.
Univet Agricultural Products, Inc. 475 SCRA 636).
A: Under the 1948 Judiciary Law, you cannot appeal directly to the
SC. You must appeal to the CA.
The same thing when the issue is on the constitutionality of a
treaty, law, legality of tax, when the jurisdiction of the lower court
is in issue, as explained here in this paragraph of the Judiciary Act
of 1948, if the appeal is 100% constitutional issue, jurisdictional or
legality issue appeal is to the SC under the Constitution. But if it
is mixed with questions of fact, do not go to the SC. You go first to
the CA. That is what the paragraph is all about.
This paragraph shows that the present CA is a more powerful court

than before. It is a unique court. Aside from being an appellate
court, it also acts as a trial court. It may receive evidence but only
those evidence which were overlooked by the trial court. It can
order a new trial or conduct a new trial itself.
Exclusive appellate jurisdiction

Exclusive appellate jurisdiction by way of ordinary appeal from the
RTC and the Family Courts (Sec. 9[3] BP Blg. 129).
The CA may pass upon factual issues as when a petition for

certiorari is filed before it(Alcazaren vs. Univet Agricultural
Products, Inc. 475 SCRA 636) or in petitions for writ of amparo or
habeas corpus data or in case of actions to annul judgment of the
RTC over which the CA has original jurisdiction (Bar 2008).
Exclusive appellate jurisdiction by way of petition for review from

the RTC rendered by the RTC in the exercise of its appellate
jurisdiction (Sec. 22 BP Blg. 129; Rule 43, Rules of Court; Sec. 9 BP
Blg. 129)
Q: If an issue of fact is tried before the RTC, can I always ask the CA
to allow me to present evidence? Does it mean to say now that
since the CA is a very powerful court, it can take the place of the
RTC? A: That is already interpreted in the case of
Exclusive appellate jurisdiction by way of petition for review from

the decisions, resolutions or orders or awards of the CSC, Central
Board of Assessment Appeals and other bodies mentioned in Rule
43 (Sec. 9[3]), BP Blg. 129) and of the Office of the Ombudsman in
administrative disciplinary cases (Enemecio vs. Office of the
Ombudsman 419 SCRA 82; Gonzales vs. Rosas 423 SCRA 488).
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT

125 SCRA 522 [1983]
25

HELD: The power of the CA to receive evidence refers only to

incidental facts which were not 100 percent touched upon, or
matters which were simply overlooked by the trial court. You
cannot opt not to present evidence before the RTC. It only
refers to incidental facts.
making the courts readily accessible to the

people of the different parts of the region
and making the attendance of litigants and
witness as inexpensive as possible.
Though RTC Cebu City is found in the 7th Judicial Region, which
includes Cebu, Bohol, Negros Oriental and Siquijor province, its
territorial area is not the entire region, (7th Judicial Region), where
it belongs or even the entire province of Cebu or limited to Cebu
City only because it depends on the territory as defined by the SC.
Evidence necessary in regards to factual issues raised in cases

falling within the Appellate Courts original and appellate
jurisdiction contemplates incidental facts which were not
touched upon, or fully heard by the trial or respondent Court.
The law could not have intended that the Appellate Court
would hold an original and full trial of a main factual issue in a
case, which properly pertains to Trial Courts.
Now, the law says, the SC has the power to define the area of its
branch for purposes of supervising that area and the MTC there.
Now, as early as 1983, the SC has already come out with the
administrative order defining the area of responsibility of each
branch throughout the Philippines.
JURISDICTION OF THE
Interim Rules, Sec. 2. Territorial Jurisdiction of
Courts. -
REGIONAL TRIAL COURTS

Q: How many RTCs are there in the Philippines?
BP 129 Section 13 (1) Creation of Regional
Trial Courts There are hereby created
thirteen (13) Regional Trial Courts, one for
each of the following regions: x x
a) MetTCs, MTCs and MCTCs shall exercise

their jurisdiction in the city, municipality or
circuit for which the judge thereof is
appointed or designated.
So the Judiciary law has divided the country into 13 areas called
JUDICIAL REGIONS. From the 1st to the 12th, the 13th is actually in
the National Capital Region (NCR), Metro Manila. Every division is
divided into branches.
b) A Regional Trial Court shall exercise its

jurisdiction within the area defined by the SC
as the territory over which the particular
branch concerned shall exercise its authority,
in accordance with Sec. 18 of BP 129.
Every RTC judge is appointed to a region which shall be his

permanent station, and his appointment states the branch of the
court and seat to which he shall be originally assigned. However,
the SC may assign temporarily an RTC judge to another region as
public interest may require, provided that such temporary
assignment shall not last longer than 6 months without the consent
of the RTC judge concerned.
Jurisdiction of the RTC

EXCLUSIVE ORIGINAL JURISDICTION Note Section 19 was
amended by RA 7691, effective April 15, 1994 and entitled An Act
Expanding the Jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts.
The SC shall define the territory over which a branch of the RTC
shall exercise his authority. The law provides:
CONCURRENT ORIGINAL JURISDICTION with other courts

Section 21
BP 129, Section 18. Authority to define

territory appurtenant to each branch The
Supreme Court shall define the territory over
which a branch of the Regional Trial Court
shall exercise its authority. The territory thus
defined shall be deemed to be the territorial
area of the branch concerned for purposes of
determining the venue of all suits,
proceedings or actions, whether civil or
criminal, as well as determining the
Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts
over which the said branch may exercise
appellate jurisdiction. The power herein
granted shall be exercised with a view to
APPELLATE JURISDICTION Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE RTC

Sec. 19 Jurisdiction in civil cases Regional
Trial Courts shall exercise exclusive original
jurisdiction:
[1] In all civil actions in which the subject of
the litigation is incapable of pecuniary
estimation.
26

What does incapable of pecuniary estimation mean?
An action seeking to annul a resolution of a government-owned

and controlled corporation is an action incapable of pecuniary
estimation (Polomolok Water District vs. Polomolok General
Consumers Association GR No. 162124, October 19, 2007).
In an action incapable of pecuniary estimation, the basic issue is

one other than the recovery of a sum of money. If ever there is a
claim for money, it should only be incidental to the main issue.
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 vs. Vestil 304 SCRA
739).
Where the action is principally the recovery of a sum of money, the

action is one capable of pecuniary estimation and jurisdiction
would then depend on the amount of the claim exclusive of
interest, damages of whatever kind, attorneys fees, litigation
expenses and costs. (Raymundo vs. CA, 213 SCRA 457 [1992];
Singsong vs. Isabela Sawmill, 88 SCRA 623 [1979])
An action for partition of a real property located in Taytay Rizal and

with an assessed value of P20,000.00, the resolution of which
involves the determination of hereditary rights, is an action
incapable of pecuniary estimation and thus, should be filed in the
RTC (Suggested answer UP Law Center Bar 2000) Note: This answer
could also be subject to an alternative answer, when it is argued
that an action for partition is one which involves interest in real
property. Hence, jurisdiction would be dependent on the assessed
value of the property.
The basic issue in an action incapable of pecuniary estimation is

one other than the recovery of money. In this kind of action the
money claim is merely incidental (ibid)
How to determine whether the action is capable or incapable of
pecuniary estimationIn determining whether an action is one the subject matter of
which is not capable of pecuniary estimation, this Court has
adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the recovery
of a sum of money, the claim is considered capable of pecuniary
estimation and whether jurisdiction is in the MTCs or the CFIs
would depend on the amount of the claim. However, where the
basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a
consequence of, the principal relief sought, this Court has
considered such actions as cases where the subject of the litigation
may not be estimated in terms of money, and are cognizable
exclusively by the CFI.
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 because the main issue is whether or not there is a right
to compel specific performance (Suggested answer, UP Law Center
Bar 2000). 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.
An action for specific performance is one generally considered
incapable of pecuniary estimation (Russel vs. Vestil, supra).
Examples: of actions incapable of pecuniary estimation are those

for specific performance, support, or foreclosure of mortgage or
annulment of judgment, also actions questioning the validity of a
mortgage, annulling a deed of sale or conveyance and to recover
the price paid and for rescission which is a counterpart of specific
performance. (Russel vs. Vestil, 304 SCRA, 739, 744-745 [1999])
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 RTC even if the amount of
damages sought to be recovered is within the jurisdiction of the
MTC.
Such ruling was, however, modified in Go vs. UCPB, GR No. 156182

Nov. 11, 2004 where the court declared the following as real
actions:
1)
2)
Where, however, the demand is in the alternative, as in an action

to compel the defendant to deliver the house by completing its
construction or to pay the sum of P644.31, the action is one that is
capable of pecuniary estimation (Cruz vs. Tan 87 Phil. 627). Thus an
action for specific performance or in a the alternative, for damages
in the amount of P180,000.00 is one capable of pecuniary
estimation. Here, the amount of damages is determinative of
jurisdiction (Bar 1997).
judicial foreclosure of real estate mortgage;

actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as well as a
real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a real
action and jurisdiction is determined by the assessed value of the
property.
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
A complaint for expropriation is incapable of pecuniary estimation

(Barangay San Roque vs. Heirs of Pastor, 334 SCRA 127).
27

matter of litigation is incapable of pecuniary estimation and

properly cognizable exclusively by the RTC under Sec. 19(1) of BP
Blg. 129, as amended by RA No. 7691 (Bokingo vs. CA 489 SCRA
521).
[3] In all civil actions in admiralty and

maritime jurisdiction where the demand or
claim exceeds One Hundred Thousand pesos
(P100,00.00) [now PhP 300,000.00] or, in
Metro Manila, where such demand or claim
exceeds Two Hundred Thousand pesos
(P200,000.00)[now, PhP 400,000].
An action for injunction is within the jurisdiction of the RTC being

an action incapable of pecuniary estimation. (Bar 1997).
An action for replevin of a motorcycle valued at P150,000.00 is
capable of pecuniary estimation. The basis of jurisdiction is the
value of the personal property sought to be recovered. The amount
of P150,000.00 falls within the jurisdiction of the MTC. (Bar 1997).
EXAMPLE: The shipper will ship to you goods involving a common

carrier and while in transit, the goods are lost or they are totally
damaged. You would like to file a claim or a case against the
carrier, what kind of a case is it? That is an admiralty or maritime
case.
An action for interpleader is capable of pecuniary estimation. 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.
Q: In which court will you file it?

A: It depends on how much is your claim. If your claim of the
damaged or lost cargo exceeds P300,000, then, RTC; if it is
P300,000 or less, MTC. In Metro Manila, the jurisdictional amount
is higher it should be over P400,000.
Hence, an action of 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; Makati
Development Corporation vs. Tanjuatco 27 SCRA 401).
RA 7691, Sec. 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 Blg. 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).
[2] In all civil actions which involve the title

to, or possession of, real property or any
interest therein, where the assessed value of
the property involved exceeds P20,000 or for
civil actions in Metro Manila, where such
value exceeds P50,000 except actions for
forcible entry into and unlawful detainer of
lands and buildings; original jurisdiction over
which is conferred upon the Metropolitan
Trial Courts, Municipal Circuit Trial Courts;
So in all real actions outside of forcible entry and unlawful detainer,
jurisdiction is determined by the assessed value of the real
property subject thereof.
[4] In all matters of probate, both testate and

intestate, where the gross value of the estate
exceeds One Hundred Thousand pesos
(P100,000.00) [now php300,000] or, in
probate matters in Metro Manila, where such
gross value exceeds Two Hundred Thousand
pesos (P200,000.00) [now P400,000].
What is a real action?

It is one affecting title to or possession of real property, or interest
therein. (Sec. 1, Rule 4)
Examples: would be accion publiciana (an action to recover
possession of real property), accion reinvidicatoria (action to
recover ownership of real property), quieting of title, provided the
assessed value of the property exceeds P20,000.00.
In the subject of Wills and Succession, when a person dies, his

estate, his property will be settled for the benefit of his creditors
and heirs. That is what you call either as testate or intestate
proceedings depending on whether the deceased left a will or
none.
So, for a lesser value, MTC has jurisdiction. This is why MTCs now
have jurisdiction over accion publiciana when the value of the
property is P20,000 or less.
If there are debts due the decedent, thus, payable by his/her

estate, settlement would mean liquidation, which includes
inventory of all the assets and obligations payable, payment of the
debts, then distribution of the residue to the heirs. This is done by
the court thru an administrator appointed by it or thru the
executor appointed by the decedent.
In forcible entry and unlawful detainer, jurisdiction lies with the

MTC regardless of the assessed value.
Now, if in Metro Manila, the value is P50,000.
28

Q: Where should the estate of the deceased person be settled, RTC

or MTC?
lessor, agricultural lessee, agricultural lands. When BP 129 was

enacted, the CAR and the JDRCs were abolished together with the
other courts created by law. Cases which they used to handle were
automatically transferred to the RTC. That was after BP 129 took
effect.
A: It depends on how much is the gross value of his estate. If it

exceeds P300,000, RTC. If it is P300,000 or less, it should be with
the MTC. In Metro Manila again, the gross should be more than
P400,000.
What were the cases which were usually falling within the original
jurisdiction of the former JDRC?
The jurisdiction of the court as a probate or intestate court relates

only to matters having to do with the settlement of the estate and
probate of the will of the decedent but does not extend to the
determination of questions of ownership that arise during the
proceedings.
Usually, those involving family and children, like support filed by

the child against his father, compulsory recognition, custody of
children, adoption proceedings.
Under BP 129, all of these are now within the jurisdiction of RTC.
[5] In all actions involving the contract of

marriage and marital relations.
HOWEVER, this has been amended again by RA 8369 (Family Courts

Act of 1997) and these cases are now under the jurisdiction of the
FAMILY COURTS: (See Sections 5 [b], [c], [e], [g])
Most of these cases are under the Family Code and now fall under
the jurisdiction of family courts (RA 8369, The Family Courts Act of
1997). But because family courts have not yet been constituted,
the SC has designated RTCs to take cognizance of such cases.
RA 8369, SECTION 5.Jurisdiction of Family

Courts. The Family Courts shall have
exclusive original jurisdiction to hear and
decide the following cases:
Q: What are the possible actions which you can imagine involving
the contract of marriage and marital relations?
xxxx
A: Annulment of marriage, legal separation, declaration of nullity,
dissolution of the absolute community of husband and wife, and
action for support.
b) Petitions for guardianship, custody of

children, habeas corpus in relation to the
latter;
RA 8369, SECTION 5.Jurisdiction of Family

Courts. The Family Courts shall have
exclusive original jurisdiction to hear and
decide the following cases:
c) Petitions for adoption of children and the

revocation thereof;
xxxx
xxxxxx
g) 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 Presidential Decree No. 603, Executive
Order No. 56, (Series of 1986), and other
related laws;
d) Complaints for annulment of marriage,

declaration of nullity of marriage and those
relating to marital 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;
xxxxxx
xxxxx
No. 6 will be discussed later.
As regards the law transferring the jurisdiction of the CAR to the
RTC, it became partially obsolete with the enactment of the
Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15,
1988). Under the CARL, all agrarian disputes between landlord and
tenant, lessor and lessee were transferred to the DAR particularly
the DAR Adjudication Board (DARAB), making them quasi-judicial
cases. So, from CAR to RTC, from RTC to DARAB
[7] In all civil actions and special proceedings

falling within the exclusive original
jurisdiction of a Juvenile and Domestic
Relations Court and of the Court of Agrarian
Relations as now provided by law;
Before BP 129 or before 1980, there were special courts existing.
Among these courts were the so called Juvenile and Domestic
Relations Courts (JDRC). Then you have the Court of Agrarian
Relations (CAR) which tried cases involving tenancy, agricultural
So the RTC has NO jurisdiction, EXCEPT in the following 2 cases
29

QUISMUNDO vs. COURT OF APPEALS - 201 SCRA 609 [1991]
of whatever kind, attorneys fees, litigation expenses, and costs

xxx.
HELD: Wth the enactment of Executive Order No. 229,

which took effect on August 29, 1987, the Regional Trial
Courts were divested of their general jurisdiction to try
agrarian reform matters. The said jurisdiction is now
vested in the Department of Agrarian Reform. Said
provisions thus delimit the jurisdiction of the regional
trial courts in agrarian cases only to two instances:
1.
2.
Q: What are litigation expenses and costs?

A: Costs are not the same as attorneys fees and litigation
expenses. Actually, attorneys fees and litigation expenses are part
of damages. Costs are governed by Rule 141, while attorneys fees
and litigation expenses are governed by the Civil Code.
ACTIONS PURELY FOR DAMAGES
petitions for the determination of just

compensation to landowners; and
prosecution of criminal offenses under said Act.
SITUATION: Suppose the action is purely for damages, like breach

of contract of carriage. Instead of bringing you to your destination,
you ended up in the hospital. You now sue the common carrier for
damages and your claim is P1 million for injuries, moral, exemplary,
etc. Where will you file the case?
EXAMPLE: If you are a landowner and your agricultural land is

placed under the CARP coverage, the government will fix the
payment for you. The trouble is that you did not agree on the
amount of payment. You want to contest the amount of
compensation payable, in which court will you file your action?
This question has been clarified by SC Circular No. 09-94:

Guidelines in the Implementation of RA 7691 Extending the
Jurisdiction of the MTCs where the SC said that the provision
excluding damages applies only if the damages are INCIDENTAL to
the action. If the main cause of action is 100% damages, you
include it in determining tire P300,000 jurisdictional limit of the
MTC.
A: RTC and you ask for higher compensation.

[8] In all cases in which the demand,
exclusive of interest, damages of whatever
kind, attorneys fees, litigation expenses, and
costs or the value of the property in
controversy exceeds One Hundred Thousand
pesos (P100,000.00) [now P300,000] or, in
such other cases in Metro Manila, where the
demand, exclusive of the above-mentioned
items exceeds Two Hundred Thousand pesos
(P200,000.00)[now P400,000]
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but
she survived. She claims for damages for breach of contract of
carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages exceeded
P300,000. Since the case is purely for damages, it is included in
determining the jurisdiction of the court.
The best example is money claim. Most cases which go to court

now are money claims an action to collect sum of money.
The rule is, you only exclude the damages if it is a secondary claim.
But if damages is the primary or only claim, you determine whether
the total claim for damages is above P300,000, or equal to or less
than P300,000.
Q: Unpaid loan you would like to collect an unpaid loan of your

debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over
P300,000 outside Metro Manila RTC, in Metro Manila,
P400,000. If the amount that you are collecting is only P300,000 or
less obviously, you file your case in the MTC.
The SC said in this Circular, the exclusive damages of whatever

kind in determining the jurisdiction under Section 19 paragraph
[8] applies to cases where the damages are merely incidental to or
a consequence of the main cause of action. However, if the claim
for damages is the main cause of action, the amount of such claim
should be considered in determining the jurisdiction.
If the value of the claim is > P300,000 RTC

If the value of the claim is = or < P300,000 MTC
EXAMPLE: P will file a case against D to recover a piece of land

worth P20,000.00 only. But her claim for damages exceeds
P300,000.
Q: Suppose the principal amount that you borrowed from me is

P300,000, the interest is P30,000. And you are collecting P10,000
for moral damages, another P10,000 for expense of litigation, etc.
So my total claim is P350,000. Where will I file the case?
Q: In what court will P file a civil case where she wants to recover a
piece of land with value of only P20,000?
A: MTC. In determining the jurisdictional limit of P300,000, do not

include the interest, damages, attorneys fees, etc. So you deduct
those from the principal claim even if you put them in your
complaint because the law says, xxx exclusive of interest, damages
A: MTC because of paragraph [2]. As regards the damages of

P300,000.00, MTC still has jurisdiction because such damages,
30

being incidental, is not included in determining the jurisdiction of

the RTC.
HELD: NO. The plaintiff is wrong. The title of the action is not
determinative on the court. Just like the rule on contracts
where the nature of the contract is not determined by the
title but by stipulation.
Now, the law says, exclusive of interest, damages of whatever

kind, attorneys fees, litigation expenses, and costs or THE VALUE
OF THE PROPERTY IN CONTROVERSY exceeds P300,000.
The factual allegations in the complaint seeking for the

performance of an obligation of a written contract which is a
matter clearly incapable of pecuniary estimation prevail over
the designation of the complaint as one for the sum of money
and damages.
Q: What is the property in controversy?

A: Obviously here, the property is PERSONAL PROPERTY not real. If
the property sought to be recovered is real, apply paragraph [2] of
Section 19 on recovery of real property.
As may be seen from the foregoing enumeration, jurisdiction

is determined:
Q: You want to recover your car which your friend borrowed but
did not return, which court has jurisdiction?
(1)
(2)
(3)
A: MTC if the value is P300,000.00 or less, and RTC, if over.
by the nature of the action; or

by the value of the demand; or
by the value of the property involved.
[6] In all cases not within the exclusive

jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial
functions
Q: Who shall determine the value or how should the value be

determined?
A: In determining the jurisdiction of the court, over the subject
matter, the allegations in the complaint governs.
Practically, this makes the RTC the universal catcher what does
not belong to any other court, belongs to the RTC. Thats what this
provision is saying.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA - 120

SCRA 89 [1983]
That is why, because of this, there are problems reaching the SC on

jurisdiction whether a case belongs to this, to the regular court or
to a special quasi-judicial body. And we are going to go over some
of these cases.
FACTS: A entered into an agreement with B where A

deposited the sum of P50,000 with B. After certain conditions
are complied B has to return the amount to A. According to A
the conditions are already complied with but B still refuses to
return the money. So A filed a complaint which he
denominated as sum of money and since he is only asking for
the return of P50,000, A filed the case in the MTC.
SANDOVAL vs. CANEBA - 190 SCRA 77 [1990]

FACTS: The quarrel in this case involves the owner of the
subdivision and the buyer. Later on, the buyer refused to pay
the unpaid installments. The subdivision developer filed a
case for the collection of unpaid installments over the
subdivision lots.
ISSUE #1: Whether or not the MTC has jurisdiction over the
case.
HELD: The regular courts have no jurisdiction. That should be

decided by the Housing and Land Use Regulatory Board
(HLURB) formerly known as NHA. Under PD 957, it is the
HLURB not the RTC or MTC which has the jurisdiction to hear
a case involving non-payment of installments over
subdivision lots.
HELD: The MTC has NO jurisdiction. It should be filed in the

RTC. It is not an action to collect a loan. You are not
recovering a loan. You are compelling him to comply with the
agreement to return the money after certain conditions are
complied with. You are trying to enforce your agreement.
therefore your action is an action for SPECIFIC PERFORMANCE
which should be tried by the RTC under paragraph [1].
The counterpart of this case was the case of
When a party to a contract has agreed to refund to the other

party a sum of money upon compliance by the latter of
certain conditions and only upon compliance therewith may
what is legally due him under the written contract be
demanded, the action is one not capable of pecuniary
estimation. So it is cognizable by the RTC.
CT TORRES ENTERPRISES, INC. vs. HIBIONADA 191 SCRA

268 [1990]
FACTS: This is also the case between the buyers of a
subdivision lot against the subdivision developer. Only this
time it is the subdivision lot buyers who are suing the
developer of the subdivision. The subdivision lot owners filed
against the subdivision developer for not maintaining properly
the roads of the subdivision. So they filed a case for specific
ISSUE #2: But according to the plaintiff, when he filed the

complaint, it is entitled for sum of money which should fall
under paragraph [8]. Is the plaintiff correct?
31

performance with damages to compel the developer to

comply with the contract to maintain the roads.
the subdivision owners and developers. Under the law,

unsound real estate business practice is under the HLURB. The
practice in the case is not a sound real estate business I am a
developer, I enter into a contract with you and then later on I
sold the contract to a third person, that is unsound!
HELD: The jurisdiction is with the HLURB and not with the
regular courts. But according to the plaintiff But Im also
claiming for damages so that it should be filed before the
regular courts. How can the HLURB award damages? Only the
regular courts can award the damages. Can the HLURB
award damages? According to the SC:
By virtue of P.D. 1344, the HLURB has the exclusive

jurisdiction to hear and decide the matter. In addition to
involving unsound real estate business practices, the
complaints also involve specific performance of the
contractual and statutory obligations of the owners or
developers of the subdivision. So it is still with the HLURB
and not with the regular courts.
The argument that only courts of justice can adjudicate

claims resoluble under the provisions of the Civil Code is out
of step with the fast-changing times. There are hundreds of
administrative bodies now performing this function by virtue
of a valid authorization from the legislature. This quasi-judicial
function, as it is called, is exercised by them as an incident of
the principal power entrusted to them of regulating certain
activities falling under their particular expertise.
BENGUET CORPORATION vs. LEVISTE 204 SCRA 99 [1991]
FACTS: A mining company entered into an operations

agreement for management with another mining company.
Then later on, one wants to file a case for rescission of the
agreement for one reason or another. So it was filed with the
RTC.
So quasi-judicial bodies are now authorized to award

damages.
As a matter of fact in Labor Relations, the question is asked
whether the NLRC is authorized to grant damages also to an
employee, moral and exemplary, which normally is only awarded
by courts. The Labor Code says yes. In other words, even damages
now can be awarded by administrative bodies such as NLRC.
HELD: The RTC has NO jurisdiction again because PD 1281

vested with the Bureau of Mines with jurisdictional
supervision and control over all issues on mining claims and
that the Bureau of Mines shall have the original exclusive
jurisdiction to hear and decide cases involving the
cancellation and enforcement of mining contracts.
FAJARDO vs. BAUTISTA 232 SCRA 291 [1994]
The trend is to make the adjudication of mining cases a purely

administrative matter. Another case is the case of
FACTS: Isabelo and Marita Jareno are the owners and

developers of a subdivision. Fajardo and others, as buyers,
signed separate contracts each designated a contract to sell
under which for consideration therein stated, the Jarenos
bound themselves to sell to Fajardo et al the lot subject
thereof, and after the latter shall have paid the purchase price
and interest shall execute in favor of Fajardo et al the
corresponding deeds of sale.
MACHETE vs. COURT OF APPEALS - 250 SCRA 176 [1995]

FACTS: This case involves the collection by the landowner of
unpaid back rentals from his leasehold tenants. The
landowner filed the money claims before the RTC.
HELD: The RTC has no jurisdiction over cases for collection of
back rentals for the leasehold tenants. This is an agrarian
dispute which exclusively cognizable by the DARAB.
When these contracts to sell are still ongoing the Jarenos sold
these lots to other buyers and the title was transferred to the
second buyer. So when Fajardo et al learned about it, they
filed separate complaints with the RTC for annulment of the
sale to the other buyers.
The failure of petitioners to pay back rentals pursuant to the

leasehold contract with landowner is an issue which is clearly
beyond the legal competence of the trial court to resolve. The
doctrine of primary jurisdiction does not warrant a court to
arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged with an
administrative body of special competence.
Now, according to Fajardo, the jurisdiction of the case belongs

to the RTC and not with the HLURB because the titles of the
lots are transferred to the other buyers. It is no longer under
the name of Jareno. Secondly, their action is for the
annulment of title to a third person. Thirdly, these third
persons are not the developers; fourthly, under the Judiciary
Law, actions involving title to a real property are to be tried by
the RTC.
Lets go to Professional Regulation Commission (PRC). That is the

government body which administers all government examination
for professionals except members of the law profession. Now, this
is what happened in the case of
HELD: The RTC still has NO jurisdiction because the case

involved unsound real estate business practice on the part of
LUPANGCO ET AL vs. COURT OF APPEALS - 160 SCRA 848

[1988]
32

FACTS: Lupangco et al were BS Accounting graduates and

reviewing to take the CPA exams in 1985.
BERNARDO vs. CALTEX PHIL. INC. - 216 SCRA 170 [1992]

FACTS: Under E.O. No. 172, when there is a dispute between
an operator or dealer and an Oil company regarding
dealership agreement, the case shall be under the jurisdiction
of the Energy Regulatory Board (ERB). So any dispute
regarding their relationship agreement except disputes arising
out of the relationship as debtor and creditor. So if the
dispute arose out of the relationship as debtor and creditor, it
should be filed with the RTC.
There were some anomalies (leakages) in the 1985 CPA Board

Examination. By next year, the PRC passed a resolution
prohibiting CPA examinees to attend review classes or
conferences because of leakages. They are prohibited from
receiving any handouts, review materials or any tip from any
school, college or university. That was Resolution No. 105 of
the PRC.
So petitioners Lupangco et al, all CPA reviewers filed an
injunction suit against the PRC and to declare the resolution
unconstitutional. They filed it with the RTC. The PRC moved to
dismiss alleging that the RTC has no jurisdiction over the case
because the one which has the jurisdiction is the CA
exclusive jurisdiction to review any decision, order, ruling orresolution of any quasi-judicial body. And the PRC is a quasijudicial body. So their resolution can only be questioned
before the CA and not with the RTC.
Now what happened here is that on December 5, 1990,

Bernardo, a dealer of Caltex, ordered gasoline from Caltex. So
he ordered in the morning. At 6:00 at night on the same day,
there was a price increase. So when the gasoline was
delivered the following day, Caltex charged Bernardo for the
increased price. Bernardo refused to pay and he filed a case
before the RTC. Caltex argued that the case should be filed
with the ERB.
HELD: The RTC has jurisdiction because a contract of sale of
petroleum products was here perfected between Caltex and
its operator/dealer Bernardo; that in virtue of the payment
admittedly made by Bernardo, Caltex became a debtor to
him in the sense that it was obligated to make delivery to
Bernardo of the petroleum products ordered by him; and that
the only issue is the manner by which Caltex shall perform its
commitment in Bernardos favor. It is rather one cognizable
by the Regional Trial Court, as a dispute indeed arising out of
their relationship as debtor and creditor.
HELD: The PRC is WRONG because PRC is not only a quasijudicial body, it is also a quasi-legislative body. It also acts as
legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is a
resolution pursuant to its purely administrative function. It is
a measure to preserve the integrity of licensure examination.
Therefore, it does not belong to the CA. It is not the type of
resolution contemplated by Section 9.
The authority of the CA to review all resolutions of all quasijudicial bodies pursuant to the law does not cover rules and
regulations of general applicability issued by the
administrative body to implement its purely administrative
policies and functions like Resolution No. 105 which was
adopted by the PRC as a measure to preserve the integrity of
licensure examinations. So that is not the resolution
reviewable by the CA.
What the controversy is all about, to repeat, is simply the

prices at which the petroleum products shall be deemed to
have been purchased from Caltex by Bernardo in December 5,
1990. This is obviously a civil law question, one determinable
according to the provisions of the Civil Code and hence,
beyond the cognizance of the Energy Regulatory Board.
Now, under what provision under Section 19 can we justify

the jurisdiction of the RTC in the case. The SC said: It is under
paragraph 1 where the case is incapable of pecuniary
estimation or, it may fall under paragraph 6 where the case is
not within the exclusive jurisdiction by any court, tribunal orbody exercising Judicial or quasi-judicial functions.
The RTC is devoid of any competence to pass upon the validity or

regularity of seizure and forfeiture proceedings conducted by the
Bureau of Customs, and to enjoin or otherwise interfere with the
said proceedings even if the seizure was illegal. Such act does not
deprive the Bureau of Customs of jurisdiction thereon. (RV Marzan
Freight, Inc. v. CA, 424 SCRA 596)
So, if it is not reviewable by the CA, in what court can you question
the resolution? Definitely, not the CA, definitely not the SC. I dont
think its with the NLRC. So it will fall under the jurisdiction of the
RTC. Or, it can also fall under paragraph [1,] where the subject
matter of the suit is not capable of pecuniary estimation because
what is the nature of the demands is to declare unconstitutional
this resolution. So it belongs to the jurisdiction of the RTC.
The Court held that the Trial court was incompetent to pass upon
and nullify: (1) the seizure of the cargo in the abandonment
proceedings, and (2) the declaration made by the District Collector
of Customs that the cargo was abandoned and ipso facto owned by
the government. It, likewise, has no jurisdiction to resolve the issue
of whether or not the private respondent was the owner of the
cargo before it was gutted by fire. The trial court should have
rendered judgment dismissing the complaint, without prejudice to
the right of the private respondent to ventilate the issue before the
Lack of Jurisdiction by RTC on Customs Matters
33

Commissioner of Customs and/or to the CTA as provided for in the

Tariff and Customs Code.
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.
Disputed Assessments
The CTA has jurisdiction over disputed assessments, and the
ordinary courts over non-disputed ones. Failure of a taxpayer to
appeal to the CTA makes the assessment final and executory.
Thereafter, if a collection suit is filed in the court, there can no
longer be any inquiry on the merits of the original case. (Republic v.
Dy Chay 1 SCRA 975; Olivares v. Marquez, 438 SCRA 679)
Non-Disputed Assessments
As provided in RA 9262, the CTA has:
(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 P1M shall be tried by the proper
MTC, MetTC and RTC.
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 meeting 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.
Sec. 21. Original jurisdiction in other cases. Regional Trial Courts shall exercise original
jurisdiction:
[1] In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto,
habeas corpus, and injunction which may be
enforced in any part of their respective
regions;
Where, however, what is being questioned is the very authority

and power of the assessor, acting solely and independently, to
impose the assessment and of the treasurer to collect the tax, and
not merely the amounts of the increase in the tax, jurisdiction over
the case was properly with the trial courts. (Olivares v. Marquez
438 SCRA 679)
Q: What is the difference between the original jurisdiction of the

RTC in Section 21 and the original jurisdiction of the RTC in Section
19?
Special jurisdiction to try special cases

Certain branches of the RTC may be designated by the SC 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 SC may determine in the interest of a
speedy and efficient administration of justice (Sec. 233 BP Blg. 129)
A: In Section 19, you have the EXCLUSIVE original jurisdiction,

whereas in Section 21 you have the original jurisdiction but
CONCURRENT with other courts.
Thus original jurisdiction stated in Section 21 is also shared with
the SC and CA. Therefore , the SC, CA, and RTC have original
concurrent jurisdiction under Section 21. Like issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus,
etc. This is concurrent with the CA and the SC. Such writs may be
issued by (a) the RTC under Section 19; (b) CA under Section 9; and
(c) SC under Article VIII Section 5 of the Constitution. The 3 courts
share concurrent jurisdiction over these cases.
Jurisdiction over intra-corporate controversies

Sec. 5.2 of the Securities Regulation Code (RA No 8799) provides
that the RTCs shall exercise original and exclusive jurisdiction to
hear and decide the following cases:
b.)
Controversies in the election or appointments of

directors, trustees, officers or managers of such
corporations, partnerships or associations; and
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
The tax collection case would fall under the jurisdiction of the first
level courts where the amount does not exceed P300,000.00 or in
MM where it does not exceed P400,000.00.
a.)
c.)
Cases involving devises or schemes employed by or any

act, 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.
However the only difference is that writs issued by an RTC can only
be enforced in the same region where the RTC belongs. Unlike
writs issued by the SC and CA, they can be enforced anywhere in
the Philippines.
[2] In actions affecting ambassadors and other public
ministers and consuls.
Controversies arising out of inter-corporate or

partnership relations, between and among stockholders,
34

The SC and RTC have original concurrent jurisdiction in actions

affecting ambassadors, other public ministers and consuls. Section
21 paragraph 2 states only of the concurrent original jurisdiction of
the SC and RTC. Section 19 on the jurisdiction of CA does not
include the action stated in section 21 paragraph 2 as part of its
(CAs) jurisdiction.
Q: What is the difference between an appeal made from the RTC to

CA and appeal from the MTC to RTC, which is dismissed by the
latter and subsequently appealed to the CA?
A: The former (RTC CA) is in pursuance to the original jurisdiction
of the RTC. The latter (MTC-RTC-CA) is in pursuance to the
appellate jurisdiction of the RTC. (They are governed by different
rules) To illustrate:
APPELLATE JURISDICTION OF THE RTC

Sec. 22. Appellate jurisdiction. - Regional
Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall be
decided on the basis of the entire record of
the proceedings had in the court of origin and
such memoranda and/or briefs as may be
submitted by the parties or required by the
RTCs. The decision of the RTCs in such cases
shall be appealable by petition for review to
the CA which may give it due course only
when the petition show prima facie that the
lower court has committed an error of fact or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed.
Pursuant
to
original
jurisdiction of the RTC:
Pursuant
to
appellate
jurisdiction of the RTC:
COURT OF
APPEALS
COURT OF
APPEALS
Ordinary appeal
(Rule 41)
RTC
Petition for Review

(Rule 42)
RTC
Ordinary Appeal
(Rule 40)
MTC
Unlike in a case under the original jurisdiction of the RTC, where an

appeal to the CA is a matter of course. Meaning, for as long as your
appeal is on time and properly made, the CA will entertain it.
Now take note that the RTC also has appellate jurisdiction under
Section 22. These are cases decided by the MTC. So they act as a
sort of court of appeals. The RTC exercises appellate jurisdiction
over all cases decided by the MTC in their respective territorial
jurisdiction.
It is different, however, in a case under the appellate jurisdiction of

the RTC, even if your appeal is on time and properly made, there is
no assurance that the CA will entertain the appeal. The CA may
give it due course only when your petition for review shows prima
facie evidence that the lower court has committed an error of fact
or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.
Q: How will the RTC decide on the appeal?

A: It shall be decided on the basis of the entire record of the
proceedings had in the court of origin (MTC) such as memoranda
and/or briefs as may be submitted. This means that witnesses will
not be made to appear again in the appeal. It is only a matter of
reviewing the testimony, stenographic notes, evidence presented,
memoranda and briefs by the RTC judge.
Summary of RTC jurisdiction:

1.)
2.)
Q: What are memoranda and briefs?
3.)
A: It is where the appealing party will argue that the decision is

wrong and try to convince the judge that the decision is wrong, and
the other party to counter act that the decision is correct.
As to the EXCLUSIVE original jurisdiction Section

19 (BP 129);
As to its original CONCURRENT jurisdiction Section
21 (BP 129);
As to its APPELLATE jurisdiction Section 22 (BP
129)
JURISDICTION OF FAMILY COURTS
Under RA 8369, the Family Courts shall have exclusive jurisdiction

over the following civil cases:
Q: Assuming that the case is originated in the MTC and

subsequently dismissed by the RTC on appeal, is the decision by the
RTC rendered pursuant to its appellate jurisdiction appealable to
the CA?
A: YES, but the mode of appeal is now different. The decision of the
RTC in such cases shall be appealable by petition to review to the
CA. The CA may or may not give it due course.
35
1.
Petitions for guardianship, custody of children and

habeas corpus involving children;
2.
Petitions for adoption of 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, petition
for voluntary of involuntary commitment of children, the
suspension, termination or restoration of parental
authority and other cases cognizable under PD No. 603,
E.O. No. 56 (series of 1986) and other related laws;
7.
Petitions for the constitution of the family home (Sec. 5

RA 8369).
demand does not exceed two hundred

thousand pesos (P200,000.00), exclusive
of interest, damages of whatever kind,
attorney's fees, litigation expenses, and
costs, the amount of which must be
specifically alleged:
Provided, That
interest, damages of whatever kind,
attorney's fees, litigation expenses, and
costs shall be included in the
determination of the filing fees:
Provided further, That where there are
several claims or causes of actions
between the same or different parties,
embodied in the same complaint, the
amount of the demand shall be the
totality of the claims in all the causes of
action, irrespective of whether the
causes of action arose out of the same
or different transactions.
In areas where there are no Family Courts, the above enumerated

cases shall be adjudicated by the Regional Trial Court (Sec. 17, RA
No. 8369).
RA 7691, Sec. 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 Blg. 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).
JURISDICTION OF THE
MUNICIPAL TRIAL COURTS
Actually, when you know the jurisdiction of the RTC, automatically
you know the jurisdiction of the MTC. In criminal cases for
example, RTC has jurisdiction when the penalty imposable is
imprisonment of more than 6 years until death penalty. So,
necessarily, if it is 6 years or below, the MTC has jurisdiction. Same
with civil cases.
Well if you know the jurisdiction of the RTC on money claims and
probate cases, automatically you will also know that of the MTC.
Under the law, it is only the principal claim or the main claim which
is computed. Interest, damages of whatever kind, attorneys fees,
litigation expenses and cost are not included in determining the
jurisdiction when they 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
Summary of jurisdiction of MTC:

a)
b)
c)
As to original jurisdiction Section 33

As to delegated jurisdiction Section 34
As to special jurisdiction Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC

Jurisdiction and Payment of Docket Fees
Sec. 33. Jurisdiction of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts shall
exercise:
Even if the amount of damages and attorneys fees do not

determine jurisdiction, they must still be specifically alleged in the
complaint for the purpose of payment of docket fees. Thus, the
higher the amount one is claiming the higher the filing fee.
Why pay the docket fee?
1)
Exclusive original jurisdiction over civil

actions and probate proceedings,
testate and intestate, including the
grant of provisional remedies in proper
cases, where the value of the personal
property, estate, or amount of the
demand does not exceed One hundred
thousand pesos (P100,000.00) or, in
Metro Manila where such personal
property, estate, or amount of the
Because it is not simply the filing of the complaint or appropriate

initiatory pleading, but the payment of the prescribed docket fee,
that vests a trial court with jurisdiction over the subject matter or
nature of the action. (Sun Insurance Office Ltd. [SIOLI] v. Asuncion
170 SCRA 274, 285 [1989])
Let us review what we learned in criminal procedure.
36

SECTION 1.
Xxxxxx
when the amount of damages is not so alleged in the complaint or

information filed in court the corresponding filing fees need not be
paid and shall simply constitute a first lien on the judgment, except
in an award for actual damages. (General vs. Hon. Claravall, et al.,
195 SCRA 623)
When the offended party seeks to enforce civil

liability against the accused by way of moral,
nominal, temperate, or exemplary damages
without specifying the amount thereof in the
complaint or information, the filing fees
therefore shall constitute a first lien on the
judgment awarding such damages.
Q: Suppose there was no mention of any claim for moral or

exemplary damages, by not stating the amount claimed, can he still
prove them during the trial? YES
Where the amount of damages, other than

actual, is specified in the complaint or
information, the corresponding filing fees shall
be paid by the offended party upon the filing
thereof in court.
But he did not pay docket fee?

A: Never mind, once it is awarded, there is now a lien in the
judgment for the payment of the docket fee.
For Independent Civil Actions
Except as otherwise provided in these Rules,

no filing fees shall be required for actual
damages.
In the case of Sun Insurance if the damages was not mentioned in

the complaint in the civil case they are deemed waived. If it is
mentioned, and the amount is fixed you must pay the docket fee at
the start of the case though if it is not complete, you are given the
chance to complete the payment or amend the complaint within
reasonable time.
(b) The criminal action for violation of Batas

Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation
to file such civil action separately shall be
allowed.
In criminal cases, even if there is no mention of damages in the

information, you can still prove and claim them as long as there is
no waiver or reservation.
Upon filing of the aforesaid joint criminal and

civil actions, the offended party shall pay in
full the filing fees based on the amount of the
check involved, which shall be considered as
the actual damages claimed. Where the
complaint or information also seeks to recover
liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall
pay additional filing fees based on the
amounts alleged therein. If the amounts are
not so alleged but any of these damages are
subsequently awarded by the court, the filing
fees based on the amount awarded shall
constitute a first lien on the judgment.
When docket fee is due for actual damage:

So in criminal cases, if the claim for moral or exemplary damages is
mentioned in the information, you must pay the docket fee upon
filing of the information. But whether alleged in the information or
not, you can claim for actual damages and there is no docket fee
for actual damages except in cases under BP 22. That is the
exception which is now embodied in Section 1 paragraph [b] which
was taken from SC circular 57-97 there is no payment of docket
fee for actual damages except in criminal cases for violation of BP
22 because paragraph [b] says:
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing fees
based on the amount of the check involved, which shall
be considered as the actual damages claimed.
EMNACE vs CA (2001) GR 126334

Payment of Filing fees In Case Civil Aspect Is Deemed Impliedly
Instituted In the Criminal Action:
OTHER CASES ON FILING FEE IN CIVIL CASES:
In any event, the Court now makes that intent plainer, and in the
interest of clarity and certainty, categorically declares for guidance
of all concerned that when the civil action is deemed impliedly
instituted with the criminal in accordance with Section 1, Rule 111
of the Rules of Court because the offended party has not waived
the civil action, or reserved the right to institute it separately, or
instituted the civil action prior to the criminal action the rule is as
follows: (1) when the amount of the damages, other than actual, is
alleged in the complaint or information filed in court, then the
corresponding filing fees shall be paid by the offended party upon
filing thereof in court for trial; (2) in any other case, however, -- i.e.
In the case of
MANCHESTER DEVELOPMENT CORP. vs. CA 149 SCRA 562
FACTS: The plaintiff files a complaint and paid the docket fee
but he did not specify the amount of the damages he was
claiming. He contended that he is claiming for moral damages
in such amount as the court will grant. Respondent
contended, on the other hand, that it cannot be done, there is
a necessity to state the exact amount of the damages in order
to determine the correct amount of the docket fee. So the
37

plaintiff amended the complaint and paid the balance of the

docket fees.
The same rule applies to permissive counterclaims

Re Compulsory Counterclaim
ISSUE: Whether or not the subsequent amendment cures the

defect?
Rule 141 on Legal Fees was revised effective August 26, 2004 by
AM No. 04-2-04-SC and the revision includes the payment of
docket fees not only for permissive counterclaim but also for
compulsory counterclaims. But the SC suspended the enforcement
of the new rates of legal fees under Rule 141 effective September
21, 2004, with respect to compulsory counterclaims, among others.
It did not suspend the imposition of legal fees.
HELD: No, the defect is incurable. Thus, the action has to be

dismissed. The court acquires no jurisdiction over the case.
The remedy is to re-file the complaint and pay again the
complete amount of the docket fee. The prior payment made
is forfeited in as much as the defect in the first complaint is
incurable.
However, in Korea Technologies Co. Ltd. Vs. Lerma, 542 SCRA 1,

January 7, 2008, the Court said:
So based on the MANCHESTER ruling, you cannot cure the defect

by merely amending the complaint.
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 counterclaim being compulsory in nature. We stress,
however, that effective August 16, 2004, under Sec. 7 of Rule 141,
as amended by AM No. 04-2-04-SC, docket fees are now required
to be paid in compulsory counterclaim or cross claims.
However, the SC, after reflecting on what it said in the case of

MANCHESTER, realized the harshness of their decision. This
Manchester ruling was relaxed in the subsequent case of SUN
INSURANCE OFFICE which is now the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS 170
SCRA 274 [1989]
And the third rule laid down in Sun Insurance:

If the judgment awards a claim not specified in the pleadings, the
filing fee therefor shall be a lien in the judgment. It shall be the
responsibility of the clerk of Court or his duly-authorized deputy to
enforce the lien, assess and collect the additional fee.
HELD: Thus, the Court rules as follows:

1.
2.
3.
It is not simply the filing of the complaint or

appropriate initiatory pleading, but the payment of
the prescribed docket fee, that vests a trial court
with jurisdiction over the subject matter or nature
of the action. Where the filing of the initiatory
pleading is not accompanied by payment of the
docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the
applicable prescriptive or reglementary period.
Q: When can this possibly happen?

A: That can happen for example if I ask for damages. A man was
hospitalized because of physical injuries. While still in the hospital
he filed an action for damages and based the amount of damages
on the current billing but alleged that he continues to incur
expenses as may be determined in the course of trial. He paid the
docket fee corresponding to the amount mentioned. After trial he
was able to establish expenses in the sum of P50,000.00.
The same rule applies to permissive counterclaims,

third party claims and similar pleadings, which shall
not be considered filed until and unless the filing
fee prescribed therefore is paid. The court may also
allow payment of said fee within a reasonable time
but also in no case beyond its applicable
prescriptive or reglementary period.
Q: Can the court award the P 50,000?

A: Yes, because the additional expenses came only after the filing
of the case. The additional docket fee will constitute a lien on the
award.
Where the trial court acquires jurisdiction over a

claim by the filing of the appropriate pleading and
payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same
has been left for determination by the court, the
additional filing fee therefor shall constitute a lien
on the judgment. It shall be the responsibility of the
Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the
additional fee.
The Sun Insurance is a leading case on docket fee. It was followed

with a third case in December 1989 which further clarified the SUN
INSURANCE ruling. This is the case of
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE - 180 SCRA
433 [1989]
NOTE: When this case was filed, there was no SUN
INSURANCE decision yet. The guiding rule was still
MANCHESTER. But while this was pending the SUN
INSURANCE was already out.
Payment of docket fee and counterclaims

Second rule:
38

FACTS: The case was for recovery of land with damages. So it

is not purely for damages. So the amount of filing fee is
assessed based on the assessed value of the land because it is
a real action, which the plaintiff paid.
FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex,
Mobil, etc.) of the Philippines for infringement of patent with
prayer for the payment of reasonable compensation for
damages. According to him, these companies used in their
operation a certain type of machine which he claimed he
invented. His patent was infringed. Thus, all these companies
are all liable to him for royalties. The estimated yearly royalty
due him is P236,572. Since the violation has been for many
years already, his claims reached millions. The trial court
ordered him to pay P945,636.90 as docket fee. He had no
money so he questioned it. The trial court ruled:
Defendant moved to dismiss based on MANCHESTER because

the plaintiff did not specify in the complaint how much
damages he was claiming. Now the RTC of Tagum denies the
motion to dismiss. The defendant goes to the SC citing
MANCHESTER.
Of course the SC said that the Manchester ruling was no
longer controlling because of Sun Insurance.
We will allow you to file the case and the docket fee is
deductible from whatever judgment of damages shall be
awarded by the court.
But it enunciated another rule.

HELD: Where the action involves real property and a related
claim for damages as well, the legal fees shall be assessed on
the basis of both:
a)
b)
HELD: There is no such thing as file now pay later. No

justification can be found to convert such payment to
something akin to a contingent fee which would depend on
the result of the case.
the value of the property and

the total amount of related damages sought.
Filing fees are intended to take care of court expenses in the

handling of cases in terms of cost of supplies, use of
equipments, salaries and fringe benefits of personnel, etc.,
computed as to man hours used in handling of each case. The
payment of said fees therefore, cannot be made dependent
on the result of the action taken, without entailing
tremendous losses to the government and to the judiciary in
particular.
The court acquires jurisdiction over the action if the filing of

the initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the
filing of the pleading, as of the time of full payment of the fees
within such reasonable time as the court may grant, unless, of
course, prescription has set in the meantime.
In other words, the total docket fee must be based on the
assessed value of the land and for the damages. Thus:
1.
2.
Q: What is the remedy of the plaintiff if he/she cannot really pay

the filing fee?
If the docket fee for the recovery of land is paid but

none for the damages, do not dismiss the entire
case! Just do not consider the claim for the
damages. Or,
second option, citing SUN INSURANCE, give him
reasonable time to pay the balance.
A: Have himself declared by the court as a pauper litigant.

LACSON vs. REYES - 182 SCRA 729
FACTS: There was a case filed and then the lawyer filed a
motion to direct the plaintiff to pay him his attorneys fees a
motion for payment of attorneys fees.
While Sun Insurance relaxed the rule (as to how or when to

complete the payment), it did not however, effect any change
in the rule that it is not only the filing of the complaint but
also the payment of the docket fee that is necessary for the
acquisition of the jurisdiction of the court over the complaint
filed. (Gensoli & Co. v. NLRC, 289 SCRA 407, 413 [1998]). If the
filing of the initiatory pleading is not accompanied by
payment of the docket fees, the court may allow payment of
the fee within a reasonable time but in no case beyond the
applicable prescriptive or reglementary period. (Colarina v.
CA, 303 SCRA 647, 654 [1999])
Issue: Is the lawyer required to pay a filing fee?

HELD: Yes. It may be true that the claim for attorney's fees
was but an incident in the main case, still, it is not an escape
valve from the payment of docket fees because as in all
actions, whether separate or as an offshoot of a pending
proceeding, the payment of docket fees is mandatory. The
docket fee should be paid before the court would validly act
on the motion.
SUSON vs. COURT OF APPEALS - 278 SCRA 284 [August 21,
1997)
Other interesting cases on docket fees.

No file now, pay later policy
FACTS: Mortz filed a case against Charles in Leyte. After filing,

the court dismissed the case because it should be filed in
Cebu. Mortz wrote a letter to the Office of the Court
Administrator (OCA) asking that the docket fee paid in Leyte
be considered applicable to Cebu. OCA granted his request.
FILIPINAS SHELL PETROLEUM CORP vs. COURT OF APPEALS

171 SCRA 674 [1989]
39

Charles questioned it because of the rule that the payment of

docket fee is jurisdictional.
HELD: Plaintiff is correct. In determining whether an action is

one the subject matter of which is not capable of pecuniary
estimation, this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy
sought. If it is primarily for the recovery of a sum of money,
the claim is considered capable of pecuniary estimation, and
whether jurisdiction is in the municipal courts or in the courts
of first instance would depend on the amount of the claim.
HELD: The OCA has neither the power nor the authority to
exempt any party not otherwise exempt under the law or
under the Rules of Court in the payment of the prescribed
docket fees. It may be noteworthy to mention here that even
in the Supreme Court, there are numerous instances when a
litigant has had to re-file a petition previously dismissed by
the Court due to a technicality (violation of a pertinent
Circular), and in these instances, the litigant is required to pay
the prescribed docket fee and not apply to the re-filed case
the docket fees paid in the earlier dismissed case.
However, where the basic issue is something other than the

right to recover a sum of money, or where the money claim is
purely incidental to, or a consequence of, the principal relief
sought, like in suits to have the defendant perform his part of
the contract (specific performance) and in actions for support,
or for annulment of a judgment or to foreclose a mortgage,
this Court has considered such actions as cases where the
subject of the litigation may not be estimated in terms of
money, and are cognizable exclusively by courts of first
instance.
In the case at bar, in the strict sense, Mortzs complaint

cannot be deemed to have been re-filed in Cebu City
because it was not originally filed in the same court but in the
RTC Leyte. Thus, when Mortzs complaint was docketed by the
clerk of court of the RTC Cebu City, it became an entirely
separate case from that dismissed by the RTC of Leyte due to
improper venue. As far as the case in Cebu is concerned, while
undoubtedly the order of dismissal is not an adjudication on
the merits of the case, the order, nevertheless, is a final order.
This means that when private respondent did not appeal
therefrom, the order became final and executory for all legal
intents and purposes.
The rationale of the rule is plainly that the second class

cases, besides the determination of damages, demand an
inquiry into other factors which the law has deemed to be
more within the competence of courts of first instance, which
were the lowest courts of record at the time that the first
organic laws of the Judiciary were enacted allocating
jurisdiction.
DE LEON vs. COURT OF APPEALS 287 SCRA 94 [March 6,

1998]
Actions for specific performance of contracts have been

expressly pronounced to be exclusively cognizable by courts
of first instance and no cogent reason appears, and none is
here advanced by the parties, why an action for rescission (or
resolution) should be differently treated, a "rescission" being
a counterpart, so to speak, of specific performance.
FACTS: The question for decision is whether in assessing the

docket fees to be paid for the filing of an action for annulment
or rescission of a contract of sale, the value of the real
property, subject matter of the contract, should be used as
basis, or whether the action should be considered as one
which is not capable of pecuniary estimation and therefore
the fee charged should be a flat rate of P400.00 as provided in
Rule 141, Section 7(b)(1) of the Rules of Court.
In both cases, the court would certainly have to undertake an

investigation into facts that would justify one act or the other.
No award for damages may be had in an action for rescission
without first conducting an inquiry into matters which would
justify the setting aside of a contract. Issues of the same
nature may be raised by a party against whom an action for
rescission has been brought, or by the plaintiff himself.
Defendant argued that an action for annulment or rescission

of a contract of sale of real property is a real action and,
therefore, the amount of the docket fees to be paid by
Plaintiff should be based either on the assessed value of the
property, subject matter of the action, or its estimated value
as alleged in the complaint.
It is, therefore, difficult to see why a prayer for damages in

an action for rescission should be taken as the basis for
concluding such action as one capable of pecuniary estimation
a prayer which must be included in the main action if
plaintiff is to be compensated for what he may have suffered
as a result of the breach committed by defendant, and not
later on precluded from recovering damages by the rule
against splitting a cause of action and discouraging multiplicity
of suits.
Since Plaintiff alleged that the land, in which they claimed an

interest as heirs, had been sold for P4,378,000.00 to
defendant, this amount should be considered the estimated
value of the land for the purpose of determining the docket
fees.
Plaintiff countered that an action for annulment or rescission
of a contract of sale of real property is incapable of pecuniary
estimation and, so, the docket fees should be the fixed
amount of P400.00 in Rule 141, Section 7(b).
Thus, although eventually the result may be the recovery of

land, it is the nature of the action as one for rescission of
contract which is controlling.
40

Since the action of Plaintiff against Defendant is solely for

annulment or rescission which is not susceptible of pecuniary
estimation, the action should not be confused and equated
with the value of the property subject of the transaction;
that by the very nature of the case, the allegations, and
specific prayer in the complaint, sans any prayer for recovery
of money and/or value of the transaction, or for actual or
compensatory damages, the assessment and collection of the
legal fees should not be intertwined with the merits of the
case and/or what may be its end result.
thereof at Thirty Million Pesos (P30,000,000.00). Hence, this case is

one which is really not beyond pecuniary estimation, but rather
partakes of the nature of a simple collection case where the value
of the subject assets or amount demanded is pecuniarily
determinable. While it is true that the exact value of the
partnership's total assets cannot be shown with certainty at the
time of filing, respondents can and must ascertain, through
informed and practical estimation, the amount they expect to
collect from the partnership, particularly from petitioner, in order
to determine the proper amount of docket and other fees. 14 It is
thus imperative for respondents to pay the corresponding docket
fees in order that the trial court may acquire jurisdiction over the
action.
In Go vs. UCPB, GR No. 156182 Nov. 11, 2004 the court declared
the following as real actions:
3)
4)
judicial foreclosure of real estate mortgage;

actions to annul real estate mortgage;
Nevertheless, unlike in the case of Manchester Development Corp.

v. Court of Appeals, 16 where there was clearly an effort to defraud
the government in avoiding to pay the correct docket fees, we see
no attempt to cheat the courts on the part of respondents. In fact,
the lower courts have noted their expressed desire to remit to the
court "any payable balance or lien on whatever award which the
Honorable Court may grant them in this case should there be any
deficiency in the payment of the docket fees to be computed by
the Clerk of Court." 17 There is evident willingness to pay, and the
fact that the docket fee paid so far is inadequate is not an
indication that they are trying to avoid paying the required amount,
but may simply be due to an inability to pay at the time of filing.
This consideration may have moved the trial court and the Court of
Appeals to declare that the unpaid docket fees shall be considered
a lien on the judgment award.
for the reason that a real estate mortgage is a real right as well as a
real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a real
action and jurisdiction is determined by the assessed value of the
property.
EMNACE vs CA (2001) GR 126334

Issue: Whether or not respondent Judge acted without jurisdiction
or with grave abuse of discretion in taking cognizance of a case
despite the failure to pay the required docket fee;
On August 8, 1996, the Court of Appeals rendered the assailed
decision, 12 dismissing the petition for certiorari, upon a finding
that no grave abuse of discretion amounting to lack or excess of
jurisdiction was committed by the trial court in issuing the
questioned orders denying petitioner's motions to dismiss.
Petitioner, however, argues that the trial court and the Court of
Appeals erred in condoning the non-payment of the proper legal
fees and in allowing the same to become a lien on the monetary or
property judgment that may be rendered in favor of respondents.
There is merit in petitioner's assertion. The third paragraph of
Section 16, Rule 141 of the Rules of Court states that:
Not satisfied, petitioner filed the instant petition for review, raising
the same issues resolved by the Court of Appeals, namely:
I.
The legal fees shall be a lien on the monetary or property judgment

in favor of the pauper-litigant.
Failure to pay the proper docket fee;

Xxxx
xxxx
xxxx
Respondents cannot invoke the above provision in their favor

because it specifically applies to pauper-litigants. Nowhere in the
records does it appear that respondents are litigating as paupers,
and as such are exempted from the payment of court fees.
It can be readily seen that respondents' primary and ultimate

objective in instituting the action below was to recover the
decedent's 1/3 share in the partnership's assets. While they ask for
an accounting of the partnership's assets and finances, what they
are actually asking is for the trial court to compel petitioner to pay
and turn over their share, or the equivalent value thereof, from the
proceeds of the sale of the partnership assets. They also assert that
until and unless a proper accounting is done, the exact value of the
partnership's assets, as well as their corresponding share therein,
cannot be ascertained. Consequently, they feel justified in not
having paid the commensurate docket fee as required by the Rules
of Court.
The rule applicable to the case at bar is Section 5(a) of Rule 141 of
the Rules of Court, which defines the two kinds of claims as:
1)
2)
those which are immediately ascertainable; and

those which cannot be immediately ascertained as to the
exact amount.
This second class of claims, where the exact amount still has to be
finally determined by the courts based on evidence presented, falls
squarely under the third paragraph of said Section 5(a), which
provides:
We do not agree. The trial court does not have to employ

guesswork in ascertaining the estimated value of the partnership's
assets, for respondents themselves voluntarily pegged the worth
41

In case the value of the property or estate or the sum claimed is

less or more in accordance with the appraisal of the court, the
difference of fee shall be refunded or paid as the case may be.
(Emphasis ours)
fees. Nevertheless, as in other procedural rules, it may be liberally

construed in certain cases if only to secure a just and speedy
disposition of an action. While the rule is that the payment of the
docket fee in the proper amount should be adhered to, there are
certain exceptions which must be strictly construed.
In Pilipinas Shell Petroleum Corporation v. Court of Appeals, 19 this

Court pronounced that the above-quoted provision "clearly
contemplates an initial payment of the filing fees corresponding to
the estimated amount of the claim subject to adjustment as to
what later may be proved." 20 Moreover, we reiterated therein the
principle that the payment of filing fees cannot be made contingent
or dependent on the result of the case. Thus, an initial payment of
the docket fees based on an estimated amount must be paid
simultaneous with the filing of the complaint. Otherwise, the court
would stand to lose the filing fees should the judgment later turn
out to be adverse to any claim of the respondent heirs.
In recent rulings, this Court has relaxed the strict adherence to the
Manchester doctrine, allowing the plaintiff to pay the proper
docket fees within a reasonable time before the expiration of the
applicable prescriptive or reglementary period.
In the recent case of National Steel Corp. v. Court of Appeals, 25
this Court held that:
The court acquires jurisdiction over the action if the filing of the
initiatory pleading is accompanied by the payment of the requisite
fees, or, if the fees are not paid at the time of the filing of the
pleading, as of the time of full payment of the fees within such
reasonable time as the court may grant, unless, of course,
prescription has set in the meantime.
The matter of payment of docket fees is not a mere triviality. These

fees are necessary to defray court expenses in the handling of
cases. Consequently, in order to avoid tremendous losses to the
judiciary, and to the government as well, the payment of docket
fees cannot be made dependent on the outcome of the case,
except when the claimant is a pauper-litigant.
It does not follow, however, that the trial court should have
dismissed the complaint for failure of private respondent to pay
the correct amount of docket fees. Although the payment of the
proper docket fees is a jurisdictional requirement, the trial court
may allow the plaintiff in an action to pay the same within a
reasonable time before the expiration of the applicable prescriptive
or reglementary period. If the plaintiff fails to comply within this
requirement, the defendant should timely raise the issue of
jurisdiction or else he would be considered in estoppel. In the latter
case, the balance between the appropriate docket fees and the
amount actually paid by the plaintiff will be considered a lien or any
award he may obtain in his favor. (Emphasis ours)
Applied to the instant case, respondents have a specific claim

1/3 of the value of all the partnership assets but they did not
allege a specific amount. They did, however, estimate the
partnership's total assets to be worth Thirty Million Pesos
(P30,000,000.00), in a letter addressed to petitioner. Respondents
cannot now say that they are unable to make an estimate, for the
said letter and the admissions therein form part of the records of
this case. They cannot avoid paying the initial docket fees by
conveniently omitting the said amount in their amended complaint.
This estimate can be made the basis for the initial docket fees that
respondents should pay. Even if it were later established that the
amount proved was less or more than the amount alleged or
estimated, Rule 141, Section 5(a) of the Rules of Court specifically
provides that the court may refund the excess or exact additional
fees should the initial payment be insufficient. It is clear that it is
only the difference between the amount finally awarded and the
fees paid upon filing of this complaint that is subject to adjustment
and which may be subjected to a lien.
Accordingly, the trial court in the case at bar should determine the
proper docket fee based on the estimated amount that
respondents seek to collect from petitioner, and direct them to pay
the same within a reasonable time, provided the applicable
prescriptive or reglementary period has not yet expired. Failure to
comply therewith, and upon motion by petitioner, the immediate
dismissal of the complaint shall issue on jurisdictional grounds.
TOTALITY RULE
In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon.

Maximiano Asuncion, this Court held that when the specific claim
"has been left for the determination by the court, the additional
filing fee therefor shall constitute a lien on the judgment and it
shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect the
additional fee." Clearly, the rules and jurisprudence contemplate
the initial payment of filing and docket fees based on the estimated
claims of the plaintiff, and it is only when there is a deficiency that
a lien may be constituted on the judgment award until such
additional fee is collected.
Now, continuing with Section 33, it says there in paragraph [1]:

Provided further, That where there are
several claims or causes of actions between
the same or different parties, embodied in
the same complaint, the amount of the
demand shall be the totality of the claims in
all the causes of action, irrespective of
whether the causes of action arose out of the
same or different transactions.
Under This 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
Based on the foregoing, the trial court erred in not dismissing the
complaint outright despite their failure to pay the proper docket
42

claims in all the causes of action, irrespective of whether the causes

of action arose out of the same or different transactions (Sec. 33 as
amended by RA No. 7691; PANTRANCO North Express Inc. vs.
Standard Insurance Company Inc., 453 SCRA 482).
Where two or more plaintiffs, having separate causes of action, sue

one defendant or a plaintiff sues one or more defendants in a
single complaint, based on several causes of action for or against
each other, respectively, the totality rule applies only where there
is a common question of fact or law among them as provided in
Section 6 of Rule 3.
ILLUSTRATION of joinder of causes of action:

The defendant secured from me two loans covered by 2 promissory
notes and all of them are due and he has not paid me any. Let's say
each note covers a principal amount of P175,000.00.
When there are several parties-plaintiffs or defendants and there

are several causes of action, as in the last example given, when you
join the causes of action there will necessarily be a joinder of
parties. In such a case there can only be a proper joinder of causes
of action when there is a proper joinder of parties and the totality
rule applies only when the joinder is proper.
I decided to file one complaint embodying 2 causes of action

against him although I have the option also to file 2 separate
complaints. If you will look at the value of each claim which is
P175,000 that is triable by the MTC but if you will add the claims
that will be P350,000.00.
Q: When is a joinder of parties proper?
Q: Which court will have jurisdiction?
A: It is proper when there is a common question of fact and law.

Note also that joinder of parties is permissive (Sec. 6, R3)
A: The RTC because the jurisdictional amount is the total amount.
Jurisdiction of the MTC in Forcible Entry and Unlawful Detainer
Never mind that there are 2 separate loans because the law says
irrespective of whether the cause of action arose out of the same
or different transactions.
Sec. 33[2] Exclusive original jurisdiction over

cases of forcible entry and unlawful detainer:
Provided, That when, in such cases, the
defendant raises the question of ownership
in his pleadings and the question of
possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to
determine the issue of possession. x x x x
In the example, there are two causes of action arising from two
separate transactions. Illustrate a joinder of causes of action arising
from only one transaction.
Suppose the loan is payable in installments on separate dates. Each
failure is a cause of action.
These are called accion interdictal and the only issue is physical
possession of the property. The two cases should not be confused
with accion publiciana which is also the recovery of possession.
Now in the examples, there is only one plaintiff and one

defendant.
What about when there are several plaintiffs or defendants?
In unlawful detainer, the plaintiff prays not only to eject the

defendant but also to claim for back rentals or the reasonable
amount of the use and occupation of the property in case of
forcible entry.
EXAMPLE: There are four (4) passengers riding on a public vehicle.

They were all injured when the bus met an accident and all of them
were hospitalized. So after they were discharged, the four of them
wanted to sue the bus company for damages arising from contract
of carriage or culpa contractual. They decided to file only one
complaint and, in effect, joined the 4 causes of action.
Q: Suppose the unpaid rentals already amount to almost half a

million pesos, where should the case be filed?
Q: What will be now the basis of jurisdiction the claim of each

plaintiff or the totality of the claims of the 4 plaintiffs?
A: The case should still be filed with the MTC. What determines
jurisdiction is the nature of the action, and not the amount of
recoverable rentals.
A: The totality of the claims. You apply the totality rule because the
law says where there are several claims or cause of action
between the same or different parties.
Q: In an action for forcible entry or unlawful detainer, can the party

present evidence of ownership?
A: The general rule is NO because the MTC cannot adjudicate
ownership. That has to be threshed out in the proper civil action in
the RTC. But if evidence of ownership is presented in the forcible
entry or unlawful detainer case, it is only incidental and it is only
resolved to determine the issue of possession. Such declaration of
ownership is not final. The question of ownership must be litigated
in a separate action in the RTC.
So whether the parties are the same or the parties are different
embodied in the same complaint the amount of the demand shall
be the totality of the claims the totality rule applies in both
situations.
Totality Rule subject to rule on joinder of parties
43

Let us now proceed to the third paragraph of Section 33 as

amended by R.A. 7691:
the assessed value of the subject property as reflected in the

uncontroverted tax declaration is only P11,160.00. The trial court,
in its decision, rejected the contention of the defendant holding
that since the complaint alleged the estimated value of the land as
P50,000.00, such allegation must prevail over the assessed value of
P11,160.00 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 CA affirmed.
Real Actions other then Forcible Entry and Unlawful Detainer

[3] Exclusive original jurisdiction in all civil
actions which involve title to, or possession
of, real property or any interest therein
where the assessed value of the property or
interest therein does not exceed Twenty
thousand pesos (P20,000.00) or, in civil
actions in Metro Manila, where such assessed
value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages
of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That in cases
of land not declared for tax purposes, the
value of such property shall be determined
by the assessed value of the adjacent lots. (As
amended by RA 7691)
On appeal by certiorari the SC held:

The subject land has an assessed value of P11,160.00 as reflected
in the Tax Declaration No. 7565, a common exhibit of the parties.
The bare claim of respondents that it has a value of P50,000.00
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 P50,000.00The estimated value, commonly referred to as
the fair market value of the property.
Aside from forcible entry and unlawful detainer, MTCs now have
jurisdiction over other real actions or actions involving title to or
possession, or any interest therein, like accion publiciana and
accion reinvidicatoria cases where the assessed value of the land
should not exceed P20,000. In Metro Manila, it is not exceeding
P50,000 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.. That is the amendment brought about by RA
7691 which expanded the jurisdiction of the MTC.
B.) DELEGATED JURISDICTION OF THE MTC

Sec. 34. Delegated Jurisdiction in Cadastral
and Land Registration Cases. - MetTCs, MTCs
and MCTCs may be assigned by the Supreme
Court to hear and determine cadastral or
land registration cases covering lots where
there is no controversy or opposition, or
contested lots where the value of which does
not exceed One hundred thousand pesos
(P100,000.00), such value to be ascertained
by the affidavit of the claimant or by
agreement of the respective claimants if
there are more than one, or from the
corresponding tax declarations of the real
property. Their decisions in these cases shall
be appealable in the same manner as
decisions of the RTCs. (As amended by RA
7691)
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.
An accion publiciana is one for the recovery of possession or the
right to possess. It is also referred to as an ejectment suit 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 is effected by means other than unlawful detainer or
forcible entry.
Q: What is the Assessed value?
As a rule cadastral and land registration cases

fall under the jurisdiction of the RTC.
A: The assessed value of real property 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 vs. Salvador, 457 SCRA 815).
Q: What is the difference between a land registration proceeding

and a cadastral proceeding?
A: Cadastral is compulsory registration.
This is related to your study of Land, Titles and Deeds (The Property
Registration Decree). When you file a petition for land registration,
the object is to have your property registered and fall under the
Torrens System of the Land Registration.
In Vda. De Barrera vs. Heirs of Legaspi, GR No. 174346, Sept. 12,

2008, the facts point to a complaint for reconveyance of possession
of real property with preliminary injunction and damages filed in
the RTC of Tangub City. One of the defenses raised by the
defendants was the courts lack of jurisdiction over the complaint,
Q: Now, what is this delegated jurisdiction all about?
44

A: It refers only to cadastral and land registration cases which

involve the titling of property under the Torrens system or
cadastral land registration.
That is allowed because of the urgency of the situation. There is no

need for a SC authorization. However, this is only allowed in the
absence of the RTC judges. But if the RTC judge comes back, he has
to take over the petition.
Under the Property Registration Decree, only the RTC has authority
to entertain land registration and cadastral cases. But now, Section
34 gives the Supreme Court the authority to DELEGATE to MTCs to
hear and decide land registration and cadastral cases under the
following conditions:
1.)
2.)
REVISED RULE ON SUMMARY PROCEDURE as amended by A.M.

02-11-09-SC, effective November 25, 2002
Cases subject to summary procedure
(a) Forcible entry and unlawful detainer cases; and
(b) All other claims where the total claim does not exceed
P100,000.00 (outside Metro Manila), or does not exceed
P200,000.00 (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 P100,000.00 or P200,000.00.
when there is no controversy or nobody is

contesting your petition; or
even if the petition is contested where the value of
the land to be titled does not exceed P100,000.
In which case, these MTCs can decide and their decisions are
appealable directly to the CA because in exercise of delegated
jurisdiction it is acting as an RTC.
Some basic principles to be remembered in civil cases subject to a

summary procedure:
The value of the lot shall be ascertained by the affidavit of the

claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declaration of the
real property.
(a)
Not all pleadings in an ordinary civil action are allowed in

a summary procedure. The only pleadings allowed are
(1) complaint; (2) compulsory counterclaim; (3) crossclaim pleaded in the answer, (4) answers to these
pleadings (Sec. 3)
(b) The court in a summary procedure may dismiss the case
outright on any of the grounds for the dismissal of a civil
action (Sec. 4)
(c) 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)
(d) There shall be preliminary conference held but there
shall be no trial. Instead the parties shall submit
affidavits and position papers (Secs ,8,9)
(e) Within thirty (30) days from the receipt of the last
affidavits and positions papers, or the expiration of the
period for filing the same, the court shall render
judgment (Sec. 10)
(f) As a rule a motion to dismiss is not allowed except on
either of two grounds (1) lack of jurisdiction over the
subject matter, or (2) failure to comply with the
barangay conciliation proceedings (Sec. 19(a))
(g) 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
SC recognized that because the order of the trial court
cannot be appealed from it being an 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 SC 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 vs. CA 297 SCRA 574).
Now do not confuse this P100,000 (Section 34) with the P20,000
under Section 33. Section 34 deals with cadastral and land
registration cases. Section 33 involves civil cases (accion publiciana,
etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases.
- In the absence of all the Regional Trial
Judges in a province or city, any Metropolitan
Trial Judge, Municipal Trial Judge, Municipal
Circuit Trial Judge may hear and decide
petitions for a writ of habeas corpus or
applications for bail in criminal cases in the
province or city where the absent Regional
Trial Judges sit.
This is what we call special jurisdiction. It only applies to two (2)
types of cases: (1) Habeas corpus and (2) hearing of petitions for
bail.
Remember that habeas corpus is not within the jurisdiction of the
MTC. It is with the RTC. In an application for bail the RTC also has
jurisdiction because the offense may be a heinous one, but under
the law on criminal procedure you can file a petition for bail to
have your temporary freedom while the case is going on. Thats
supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are sick or
all of them are attending a convention (this actually happened in
Davao in 1990) Section 35 provides that the MTC, in the absence of
RTC judges, can hear and decide on habeas corpus case petitions
and applications or petitions for bail in criminal cases.
45

(h) 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 vs. Booc, 535 SCRA 28).
reform activities in the Philippines for the fiscal period October

2007 to September 30, 2009 . In a letter to Chief Justice Reynato S.
Puno dated October 10, 2007, ABA-ROLI proposed the
establishment of small claims pilot courts among first level courts
in different regions of the Philippines. The small claims pilot court
project was proposed by ABA to USAID after consultation with
various Supreme Court officials in conjunction with the 2000 Action
Plan for Judicial Reform. Among the critical issues being addressed
by the APJR are case congestion and delay. The congestion of case
dockets is central to a multitude of problems, either as cause or
effect; it is either the 34 A.M. No. 08-8-7-SC manifestation or the
source of other difficulties. Addressing this concern is thus an
imperative8 which is why present reforms in judicial systems and
procedures have included the following:
Q: Now, what are the PROHIBITED documents, motions, or

pleadings under the Summary Rules?
A: The following (Under Section 19):
1.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
9.)
10.)
11.)
12.)
Motion to quash except when your ground is

a.) lack of jurisdiction over the subject
matter; or
b.) failure to comply with the Barangay
Conciliation;
Motion for bill of particulars;
Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial; your remedy
here is appeal;
Petition for relief from judgement;
Motion for extension of time to file an affidavit;
Memoranda;
Petition for certiorari, mandamus, or prohibition
against any interlocutory orders issued by the
court;
Motion to declare the defendant in default;
Dilatory motions postponements;
Reply;
Third-party complaints;
Interventions;
1.
2.
3.
4.
streamlining procedural rules to eliminate provisions

that cause delay and permit dilatory tactics;
re-engineering the jurisdictional structure of the
courts to ensure easy geographical access to the
courts particularly by the poor litigants;
improving the case management system toward
more transparency, accountability and integrity of
the judicial process and for better efficiency; and
strengthening of the mediation mechanism to
promote early dispute resolution nationwide.
This involves the institutionalization of court-annexed mediation,

and the establishment of a Mediation Center to continually
monitor and assess the performance of the system and provide
training and research.
Jurisdiction Over Small Claims Cases

Introduction of the Concept of Small Claims Court in the
Philippines
Notwithstanding the absence of a law at the present time creating

small claims courts in our country, the Supreme Court through a
program in partnership with ABA-ROLI and USAID, can promulgate
and implement a simplified rule of procedure exclusively for small
claims and assign a certain number of existing first level courts to
take cognizance of small claims. This does not need legislative
action as the Court can designate several first level courts all over
the country to jump-start the pilot project. Thus, pursuant to its
rule-making power, the Court under the present Constitution can
adopt a special rule of procedure to govern small claims cases and
select pilot courts that would empower the people to bring suits
before them pro se to resolve legal disputes involving simple issues
of law and procedure without the need for legal representation
and extensive judicial intervention. This system will enhance access
to justice especially by those who cannot afford the high costs of
litigation even in cases of relatively small value. It is envisioned that
by facilitating the traffic of cases through simple and expeditious
rules and means, our Court can improve the perception of justice in
this country, thus giving citizens a renewed stake in preserving
peace in the land. This is a hopeful message to our people that
The idea of establishing Small Claims Courts in the Philippines was

first proposed to the Supreme Court through a study conducted in
1999 by Justice Josue N. Bellosillo, former Senior Associate Justice
of the Supreme Court. After observing small claims courts and
interviewing judges of such courts in Dallas, Texas, United States in
1999, Justice Bellosillo proposed in a Report that courts can be
established in the Philippines to handle exclusively small claims
without the participation of lawyers and where ordinary litigants
can prosecute and defend a small claims action through readymade forms. He envisioned the small claims courts as another
positive approach, in addition to mandatory pre-trial, for solving
court congestion and delay.The study and report was subsequently
endorsed for legislative action to Senator Franklin Drilon who later
funded a project for this purpose. At the regular session of the
Fourteenth Congress, House Bill No. 2921 entitled An Act
Establishing Small Claims Courts was introduced by Congressman
Jose V. Yap. Thereafter, on July 3, 2007, Senate Bill No. 800 entitled
Philippine Small Claims Court Act was filed by Senator Ramon A.
Revilla, Jr. and, on September 3, 2007, the bill passed First Reading
and was referred to the Committee(s) on Justice and Human Rights
and Finance. The same is still pending with these committees at
present. In 2007, the United States Agency for International
Development (USAID) awarded a two-year grant to the American
Bar Association-Rule of Law Initiative (ABA-ROLI) to pursue judicial
Rule of Procedure for Small Claims Cases there is no need to

despair for there is deliverance in law; that is a promise that has
been fulfilled by law in the past; it is a promise law will again fulfill
in the future. In December 2007, the Supreme Court established a
Technical Working Group composed of the Court Administrator,
46

the Program Management Office Administrator, selected judges

and other officials of the Supreme Court and the Integrated Bar of
the Philippines to undertake the following activities:
resorting to self-help or forcible means to seek their remedy. (Pace

v. Hillcrest Motor Co., 161 Cal. Rptr. 663, 664 Ct. App. 1980)
SEC. 3. Definition of Terms.For purposes of this Rule:
1)
2)
3)
4)
The development of Rules and Procedures to Implement

Pilot Small Claims Courts;
The establishment of Criteria to Select Appropriate
Regions/Judges for Pilot Small Claims Courts and set
Peso Limits for the Small Claims Courts
Through the Philippine Judicial Academy, the conduct of
training programs for Judges and their personnel
participating in the Pilot Small Claims Courts project; and
The employment of Justice on Wheels buses to launch
pilot small claims tribunals.
(a) Plaintiff refers to the party who initiated a small

claims action. The term includes a defendant who has
filed a counterclaim against plaintiff;
(b) Defendant is the party against whom the plaintiff
has filed a small claims action. The term includes a
plaintiff against whom a defendant has filed a claim, or
a person who replies to the claim;
(c)
Person
is
an
individual,
corporation,
partnership,limited liability partnership, association, or
other juridical entity endowed with personality by law;
Rule of Procedure for Small Claims Cases 1

A.M. No. 08-8-7-SC
RULE OF PROCEDURE
(d) Individual is a natural person;
FOR SMALL CLAIMS CASES
(e) Motion means a partys request, written or oral, to

the court for an order or other action. It shall include an
informal written request to the court, such as a letter;
EFFECTIVE OCTOBER 1, 2008

MANILA, PHILIPPINES
(f) Good cause means circumstances sufficient to

justifythe requested order or other action, as
determined by the judge; and
SEPTEMBER 2008
RULE OF PROCEDURE
(g) Affidavit means a written statement or declaration

of facts that are sworn or affirmed to be true.
FOR SMALL CLAIMS CASES
SEC. 4. Applicability.The Metropolitan Trial Courts,

Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall apply this Rule
in all actions which are: (a) purely civil in nature where
the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and (b)
the civil aspect of criminal actions, either filed before
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.
These claims or demands may be:
SECTION 1. Title.This Rule shall be known as The

Rule of Procedure for Small Claims Cases.
SEC. 2. Scope.This Rule shall govern the procedure in
actions before the Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts for payment of money
where the value of the claim does not exceed One
Hundred Thousand Pesos (P100,000.00) exclusive of
interest and costs.
Explanatory Note: The purpose of a small claims process is to
provide an inexpensive and expeditious means to settle disputes
over small amounts. For purposes of the project, the amount has
been set for claims involving amounts of not more than
P100,000.00. 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.
The small claims process is designed to function quickly and
informally. There are no attorneys, 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
(a) For money owed under any of the following:

1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following:
1. Fault or negligence;
47

2. Quasi-contract; or
inadmissible affidavit(s) or portion(s) thereof shall be

expunged from the record.
3. Contract;
SEC. 8. Payment of Filing Fees.The plaintiff shall pay the
docket and other legal fees prescribed under Rule 141 of
the Revised Rules of Court, unless allowed to litigate as an
indigent.
(c) The enforcement of a barangay amicable settlement

or an arbitration award involving a money claim
covered by this Rule pursuant to Sec. 417 of Republic
Act 7160, otherwise known as the Local Government
Code of 1991.
A claim filed with a motion to sue as indigent (Form 6-SCC)

shall be referred to the Executive Judge for immediate action
in case of multi-sala courts, or to the Presiding Judge of the
court hearing the small claims case. If the motion is granted
by the Executive Judge, the case shall be raffled off or
assigned to the court designated to hear small claims cases.
If the motion is denied, the plaintiff shall be given five (5)
days within which to pay the docket fees, otherwise, the
case shall be dismissed without prejudice. In no case shall a
party, even if declared an indigent, be exempt from the
payment of the P1,000.00 fee for service of summons and
processes in civil cases.
Explanatory Note: The kinds of cases that can be filed in Small

Claims Court vary, but the case must seek money only. For
example, a suit cannot be brought in 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, or to seek
money to compensate for pain and suffering. Some of the kinds of
cases which are allowed as small claims include the following:
1.
2.
3.
4.
5.
Actual damage caused to vehicles, other personal

property, real property or person;
Payment or reimbursement for property, deposit, or
money loaned;
Payment for services rendered, insurance claim, rent,
commissions, or for goods sold and delivered;
Money claim pursuant to a contract, warranty or
agreement; and
Purely civil action for payment of money covered
bybounced or stopped check.
Explanatory Note: A plaintiff may commence an action in the small

claims court by filing a Statement of Claim under oath with the
Clerk of the first level court in person or by mail. The claim form
shall be a simple nontechnical form approved or adopted by the
Supreme Court. The claim form shall set forth
1)
2)
3)
SEC. 5. Commencement of Small Claims Action.A small

claims action is commenced by filing with the court an
accomplished and verified Statement of Claim (Form 1-SCC)
in duplicate, accompanied by a Certification of Non-forum
Shopping (Form 1-A, SCC), and two (2) duly certified
photocopies of the actionable document/s subject of the
claim, as well as the affidavits of witnesses and other
evidence to support the claim. No evidence shall be allowed
during the hearing which was not attached to or submitted
together with the Claim, unless good cause is shown for the
admission of additional evidence.
4)
5)
the name and address of the defendant, if known;

the amount and the basis of the claim;
that the plaintiff, where possible, has demanded
payment and, in applicable cases, possession of the
property;
that the defendant has failed or refused to pay, and
where applicable, has refused to surrender the property;
and
that the plaintiff understands that the judgment on his
or her claim will be conclusive and without a right of
appeal.
The plaintiff should attach to the claim all documents necessary to

prove his/her right to reliefs prayed for. The form or accompanying
instructions shall include information that the plaintiff
No formal pleading, other than the Statement of Claim

described in this Rule, is necessary to initiate a small claims
action.
1.
2.
3.
SEC. 6. Joinder of Claims.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 interest and costs, does not exceed P100,000.00.
may not be represented by an attorney;

has no right of appeal; and
may ask the court to waive fees for filing and serving the
claim on the ground that the plaintiff is indigent unable
to pay them, using the forms approved by the Supreme
Court for that purpose.
SEC. 9. Dismissal of the Claim.After the court determines

that the case falls under this Rule, it may, from an
examination of the allegations of the Statement of Claim and
such evidence attached thereto, by itself, dismiss the case
outright on any of the grounds apparent from the Claim for
the dismissal of a civil action.
SEC. 7. Affidavits.The affidavits submitted under this Rule

shall state only facts of direct personal knowledge of the
affiants which are admissible in evidence.
A violation of this requirement shall subject the party, and
the counsel who assisted the party in the preparation of the
affidavits, if any, to appropriate disciplinary action. The
Explanatory Note: Jurisdiction and venue requirements in small

claims actions shall be the same as in other civil actions provided in
48

the Rules of Civil Procedure. A defendant may challenge jurisdiction

or venue or court location by including these defenses in his
Response before appearing in the scheduled hearing. In all cases,
even if the defendant does not ask for dismissal of the case in the
Response or appear at the hearing, the court shall inquire into the
facts sufficiently to determine whether jurisdiction and authority of
the court over the action are proper, and shall make its
determination accordingly.
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; otherwise, the
defendant shall be barred from suit on the
counterclaim.
The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount
and nature thereof are within the coverage of this Rule
and the prescribed docket and other legal fees are paid.
SEC. 10. Summons and Notice of Hearing.If no ground

for dismissal is found, the court shall forthwith issue
Summons (Form 2-SCC) on the day of receipt of the
Statement of Claim, directing the defendant to submit a
verified Response.
Explanatory Note: If a defendant has a claim against a plaintiff that

exceeds the limits stated in Section 2 of this Rule, and the claim
relates to the contract, transaction, matter, or event which is the
subject of the plaintiffs claim, the defendant may commence an
action against the plaintiff in a court of competent jurisdiction. If
said claim which is beyond the limit of money claim provided in this
Rule is filed with the Response before the Small Claims Court, the
latter shall dismiss the counterclaim.
The court shall also issue a Notice (Form 4-SCC) to both

parties, directing them to appear before it on a specific
date and time for hearing, with a warning that no
unjustified postponement shall be allowed, as provided
in Section 19 of this Rule. The summons and notice to
be served on the defendant shall be accompanied by a
copy of the Statement of Claim and documents
submitted by plaintiff, and a copy of the Response
(Form 3-SCC) to be accomplished by the defendant. The
Notice shall contain an express prohibition against the
filing of a motion to dismiss or any other motion under
Section 14 of this Rule.
SEC. 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 except on the
ground of lack of jurisdiction;
(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
(l) Interventions.
SEC. 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.
SEC. 12. Effect of Failure to File Response.Should the
defendant fail to file his Response within the required
period, the court by itself shall render judgment as may
be warranted by the facts alleged in the Statement of
Claim limited to what is prayed for.
SEC. 15. Availability of Forms; Assistance by Court

Personnel.The Clerk of Court or other court personnel
shall provide such assistance as may be requested by a
plaintiff or a defendant regarding the availability of
forms and other information about the coverage,
requirements as well as procedure for small claims
cases.
The court however, may, in its discretion, reduce the

amount of damages for being excessive or
unconscionable.
SEC. 16. Appearance.The parties shall appear at the

designated date of hearing personally or through a
representative authorized under a Special Power of
Attorney (Form 5-SCC) to enter into an amicable
settlement, to submit to Judicial Dispute Resolution
(JDR) and to enter into stipulations or admissions of
facts and of documentary exhibits.
SEC. 13. Counterclaims Within the Coverage of this

Rule. If at the time the action is commenced, the
defendant possesses a claim against the plaintiff that
(a) is within the coverage of this Rule, exclusive of
interest 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
49

SEC. 17. Appearance of Attorneys Not Allowed.No

attorney shall appear in behalf of or represent a party
at the hearing, unless the attorney is the plaintiff or
defendant.
cause the dismissal with prejudice of both the claim

and counterclaim.
SEC. 19. Postponement When Allowed.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 on the scheduled date and time. A
party may avail of only one (1) postponement.
If the court determines that a party cannot properly

present his/ her claim or defense and needs assistance,
the court may, in its discretion, allow another individual
who is not an attorney to assist that party upon the
latters consent.
Explanatory Note: A party may submit an oral or written request to

postpone a hearing date for good cause, as follows:
Explanatory Note: Except as permitted by this section, no attorney

shall appear in a small claims action except when the latter shall
maintain or defend an action in any of the following capacities:
1)
2)
(1) By or against himself or herself;

(2) By or against a partnership in which he or she is a
general partner and in which all the partners are
attorneys; or
(3) By or against a professional corporation of which he or
she is an officer or director and of which all other officers
and directors are attorneys.
3)
Nothing in this section shall prevent an attorney from doing any of

the following:
1)
2)
If the written request is in writing, it may be made either

by letter or on a form adopted or approved by the
Supreme Court;
The request shall be filed before the hearing date and
accompanied by proof of physical inability, unless the
court determines that the requesting party has good
cause to file the request on the date of hearing itself;
and
If the court finds that the interests of justice would be
served by postponing the hearing, the court shall do so
and shall notify all parties by mail on the same day of the
new hearing date, time and place.
This Section does not limit the inherent power of the court to order
postponements of hearings in strictly appropriate circumstances.
The postponement fee of One Hundred Pesos (or as provided in
Rule 141, Revised Rules of Court, as amended on Legal Fees) shall
be charged and collected before the filing of a request for
postponement and rescheduling of a hearing date.
Providing advice to a party to a small claims action,

either before or after the commencement of the action;
or
Submitting an affidavit as a witness for a party in order
to state facts of which he or she has personal knowledge
and about which he or she is competent to do so.
SEC. 20. Duty of the Court.At the beginning of the

court session, the judge shall read aloud a short
statement explaining the nature, purpose and the rule
of procedure of small claims cases.
If the court determines that a party does not speak or understand

English or Filipino sufficiently to comprehend the proceedings or
give testimony, to the questions of the court, if any, and needs
assistance in so doing, the court may permit another individual
(other than an attorney) to assist that party. If the court interpreter
or other competent interpreter of the language or dialect known to
the party is not available to aid that party in a small claims action,
at the first hearing of the case the court shall postpone the hearing
one time only to allow the party the opportunity to obtain another
individual (other than an attorney) to assist that party. Any
additional continuances shall be at the sound discretion of the
court.
SEC. 21. Judicial Dispute Resolution.At the hearing,

the judge shall conduct Judicial Dispute Resolution
(JDR) through mediation, conciliation, early neutral
evaluation, or any other mode of JDR. 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).
SEC. 22. Failure of JDR.If JDR fails and the parties
agree in writing (Form 10-SCC) that the hearing of the
case shall be presided over by the judge who conducted
the JDR, the hearing shall so proceed in an informal and
expeditious manner and terminated within one (1) day.
SEC. 18. Non-appearance of Parties.Failure of the

plaintiff to appear shall be cause for the dismissal of the
claim without prejudice. The defendant who appears
shall be entitled to judgment on a permissive
counterclaim.
Absent such agreement, (a) in case of a multi-sala court,

the case shall, on the same day, be transmitted (Form
11-SCC) to the Office of the Clerk of Court for
immediate referral by the Executive Judge to the
pairing judge for hearing and decision within five (5)
working days from referral; and (b) in case of a single
sala court, the pairing judge shall hear and decide the
Failure of the defendant to appear shall have the same

effectas failure to file a Response under Section 12 of
this Rule. This shall not apply where one of two or more
defendants who are sued under a common cause of
action and have pleaded a common defense appears at
the hearing. Failure of both parties to appear shall
50

case in the court of origin within five (5) working days

from referral by the JDR judge.
forthwith served on the parties. The decision shall be

final and unappealable.
Explanatory Note: In hearings before the small claims court,

witnesses shall still be sworn in. The judge shall conduct the
hearing in an informal manner so as to do substantial justice
between the parties. The judge shall have the discretion to admit
all evidence which may be of probative value although not in
accordance with formal rules of practice, procedure, pleading or
evidence provided in the Rules of Court, except that privileged
communications shall not be admissible. The object of such
hearings shall be to determine the rights of the litigants on the
merits and to dispense expeditious justice between the parties.
Explanatory Note: Despite the relative informality of the

procedure, judgments are based upon a strict application of the
substantive law and an objective judicial analysis of the facts. The
judge is duty-bound to give the legal basis for the findings. The
prohibition against appeals assures immediate and swift justice.
The right to appeal is not a natural right nor a part due process. It is
merely a statutory privilege and a procedural remedy of statutory
origin, a remedy that may be exercised only in the manner and in
accordance with the provisions of the law authorizing such
exercise.
An interventionist role by judges in such hearings is effective in

eliciting evidence from litigants in person. It is seen by
unrepresented parties as a helping hand which they appreciate,
provided that judges avoid the danger of appearing to be partial.
By discussing the facts of the case, judges find what common
ground does exist between the parties. This tends to narrow the
differences between the parties and make the final judicial decision
easier whereas traditional open court trials, with the presence of
lawyers and the use of cross-examination tend to polarize the
parties, increase antagonism and heighten the differences.
The applicable provisions of the law allowing appeals from

decisions of the first level courts are Sections 36 and 38 of B.P. Blg.
129, as amended, also known as The Judiciary Reorganization Act
of 1980. The procedure on appeal is subject to the limitations and
restrictions provided by this Act and any such rules as the Supreme
Court may hereafter prescribe. Sec. 36 of B.P. Blg. 129 provides an
instance wherein the Supreme Court may adopt special
procedures, including cases where appeal may not be allowed, to
achieve an expeditious and inexpensive determination of particular
cases requiring summary disposition.
In this regard, Lord Woolf, Great Britains case management expert,

has observed:
SEC. 24. Execution.If the decision is rendered in favor

of the plaintiff, execution shall issue upon motion
(Form 9-SCC).
The role of the judge in small claims is not only that of

an adjudicator. It is a key safeguard of the rights of both
parties. In most cases, the judge is effectively a
substitute for a legal representative. His duty is to
ascertain the main matters at issue, to elicit the
evidence, to reach a view on the facts of the matter and
to give a decision.
SEC. 25. Applicability of the Rules of Civil Procedure.

The Rules of Civil Procedure shall apply suppletorily
insofar as they are not inconsistent with this Rule.
SEC. 26. Effectivity.This Rule shall take effect on
October 1, 2008 for the pilot courts designated to apply
the procedure for small claims cases following its
publication in two newspapers of general circulation.
In some cases he may encourage the parties to settle. In doing so

he should ensure that both parties have presented the evidence
and called the witnesses germane to their case and that he has
identified and considered any issue of law which is pertinent to the
case in hand. He must also hold the ring and ensure that each party
has a fair chance to present his own case and to challenge that of
his opponent.
A.M. No. 08-8-7-SC

FORM 1-SCC
REPUBLIC OF THE PHILIPPINES
The key judicial skills in conducting such hearings are to maintain a

balance between informality and fairness, to ensure a level playing
field and to protect the weak and the scrupulous. In practice, this is
achieved by preventing interruptions and parties talking over each
other, and making it clear that both parties will have plenty of time
to say all that they wish before the end of the hearing.
_______________________________
_______________________________
_______________________________
__________________________,
SEC. 23. Decision.After the hearing, the court shall

render its decision on the same day, based on the facts
established by the evidence (Form 13-SCC). The decision
shall immediately be entered by the Clerk of Court in
the court docket for civil cases and a copy thereof
Plaintiff,
vs. Civil Case No. ________________
For: ______________________
51

__________________________,
_____ Promissory Note/Undertaking How many: _____
Defendant.
_____ Contract/Agreement
x- - - - - - - - - - - - - - - - - - - - - -x
_____ Receipt
STATEMENT OF CLAIM
_____ Others
Plaintiff respectfully alleges:
4. The principal obligation of defendant/s amounting to

P_____________________ became due and demandable on
______________.
1. The personal circumstances of the parties are as follows:

NAME OF PLAINTIFF/S SEX AGE CIVIL STATUS
Interest at the rate of ______% per annum/per month accrued on

the principal sum due from such date of default.
______________________ ______ _____ _________

INDIVIDUAL___ CORPORATION___
PROPRIETORSHIP ___
PARTNERSHIP___
5. Despite repeated demands by plaintiff, the latest of which was

on _______________, defendant has failed to pay the obligation.
SOLE
6. _____(a) This claim has been referred to the appropriate

barangay authorities but no settlement was reached between the
parties. A Certificate to
NAME
OF
REPRESENTATIVE:________________________________________
_
File Action was issued to the plaintiff, the original of which is

attached hereto.
ADDRESS ZIP CODE

___________________________________________________
_________
_____(b) The parties are not covered by the barangay mandatory

conciliation process under the Local Government Code of the
Philippines.
NAME OF DEFENDANTS//S SEX AGE CIVIL STATUS
Prayer
______________________ ______ _____ _________
NAME
OF
REPRESENTATIVE:
________________________________________
WHEREFORE, plaintiff respectfully prays for judgment to be

rendered ordering defendant to pay plaintiff the amount of
P________________________, with interest at the rate of ____%
per annum/ per month, from ___________, until fully paid.
___________________________; _____20___.
ADDRESS ZIP CODE
PLAINTIFF
___________________________________________________
_________
PLACE WHERE FILED
INDIVIDUAL___ CORPORATION__
PROPRIETORSHIP ___
_PARTNERSHIP___
SOLE
2. Plaintiff is suing defendant for:
FORM 1-A-SCC
CAUSE OF ACTION
VERIFICATION AND CERTIFICATION OF
_____ Collection of Sum of Money
NON-FORUM SHOPPING
_____ Damages
I, _________________________________, of legal age,

____________________ ______________________________, and
a
resident
of
__________________________________________________
,
after having been duly sworn to in accordance with law, hereby,
depose and say:
_____ Civil aspect of Criminal Case

_____ Enforcement of Barangay Agreement
Rule of Procedure for Small Claims Cases 13
1. That I am the _________________ in the above-entitled case

and have caused this ______________________________ to be
3. Plaintiffs cause of action arose from and is evidenced by:

ACTIONABLE DOCUMENT/S AFFIDAVIT/S
52

prepared; that I read and understood its contents which are true
and correct of my own personal knowledge and/or based on
authentic records;
____________________
2. That I have not commenced any action or proceeding involving

the same issue in the Supreme Court, the Court of Appeals or any
other tribunal or agency; that to the best of my knowledge, no such
action or proceeding is pending in the Supreme Court, the Court of
Appeals or any other tribunal or agency, and that, if I should learn
thereafter that a similar action or proceeding has been filed or is
pending before these courts or tribunal or agency, I undertake to
report that fact to the Court within five (5) days therefrom.
You are hereby required, within ten (10) days from receipt of this
Summons, to file with this Court and serve on plaintiff, your
verified Response to the attached Statement of Claim. The form of
the required Response is attached hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this

____________
day
of
__________________,
20
__.
_______________________
You must present the original documents on the day of the

hearing. A motion to dismiss is prohibited and shall not be
entertained.
Affiant
Your failure to respond within the 10-day period will authorize the
Court to render judgment based solely on the Statement of Claim.
GREETINGS:
You are required to submit with your Response copies of

documents as well as affidavits of any witness to stand as your
evidence in this case.
SUBSCRIBED AND SWORN to before me this _________ day of

_____________, 20 ___ .
Witness my hand under the seal of this Court, this ____ day of
______, 20____, at _____________________, Philippines.
NOTARY PUBLIC
BRANCH CLERK OF COURT
(citizenship) (civil status)

(Name)
FORM 3-SCC
FORM 2-SCC
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
__________________________,
_______________________________
Plaintiff,
__________________________,
vs. Civil Case No. ______________
Plaintiff,
For: _______________________
vs. Civil Case No. ________________
__________________________,
For: ________________________
Defendant.
__________________________,
x- - - - - - - - - - - - - - - - - - - - - -x
Defendant.
RESPONSE
x- - - - - - - - - - - - - - - - - - - - - -x
Defendant/s respectfully allege/s:
SUMMONS
1. Defendant admits all the allegations in paragraph/s ________ of

the Statement of Claim.
TO: ____________________
2. Defendant specifically denies all the allegations in paragraphs

________ of the Statement of Claim.
____________________
53

3. Defendant opposes the grant of the prayer in the Statement of

Claim for the following reasons, as supported by the attached
documents and affidavits:
Defendant.
(enumerate defenses)
NOTICE OF HEARING
4. As the Statement of Claim is baseless, defendant is entitled to

the following counterclaims:
Once issues are joined upon the filing of the defendants Response,
this case will be called for Judicial Dispute Resolution (JDR) and
hearing before the Presiding Judge of this Court on
__________________ at ___________.
x- - - - - - - - - - - - - - - - - - - - - -x
_____ Actual Damages of P______________________

_____ Moral Damages of P______________________
Failure of the plaintiff to appear at the JDR and hearing shall cause
the dismissal of the Statement of Claim, and the defendant who
appears shall be entitled to a judgment on his counterclaim. On the
other hand, failure of the defendant to appear at the JDR and
hearing shall cause the Court to render judgment based solely on
the Statement of Claim.
_____ Exemplary Damages of P_____________________

_____ Costs of suit
Prayer
_____ Actual Damages of P______________________
A party may not be represented by a lawyer, but may authorize any

other representative to appear in his behalf and participate in all
the proceedings as if the party represented were present. For this
purpose, the required authority should be evidenced by
accomplishing the attached Form 5-SCC (Special Power of
Attorney).
_____ Moral Damages of P______________________
WITNESS the HON. _________________________, Presiding Judge
_____ Exemplary Damages of P_____________________
of this Court, this ____ day of _____________, 20___, at

__________________________, Philippines.
WHEREFORE, defendant respectfully prays for judgment to be

rendered dismissing the Statement of Claim, and granting the
counterclaims, ordering plaintiff to pay defendant the following
sums:
_____ Costs of suit
BRANCH CLERK OF COURT
DEFENDANT
(VERIFICATION AND CERTIFICATION
FORM 5-SCC
OF NON- FORUM SHOPPING, if with permissive counterclaim)
SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:
FORM 4-SCC
I, _______________________, of legal age, single/married, with

residence at ___________________________ do hereby appoint,
name and constitute ________________________________,
likewise of legal age, singe/married, with residence at
________________________________ as my true and legal
representative to act for and in my name and stead and to
represent me during the hearing of Civil Case No. __________, to
enter into amicable settlement, to submit to alternative modes of
dispute resolution and to make admissions or stipulations of facts
and documents without further consultation from me.

_______________________________
_______________________________
_______________________________
__________________________,
Plaintiff,
I hereby grant my representative full power and authority to

execute and perform every act necessary to render effective the
power to compromise as though I myself have so performed it and
hereby approving all that he may do by virtue of these presents.
vs. Civil Case No. ______________

For: _______________________
In witness whereof, I hereunto set my hand this ______ day of

____________________, 20_______, at ________________.
__________________________,
54

_____________________________
5. Should the court render judgment in my favor, the amount of

the docket and other legal fees which I was exempted from paying
shall be a lien on the judgment, unless the court orders otherwise.
Principal
_____________________
WHEREFORE, premises considered, it is respectfully prayed that I

be exempted from the payment of docket and other legal fees as
indigent pursuant to Section 21, Rule 3 in relation to Section 18,
Rule 141 of the Revised Rules of Court.
Agent
Witnesses:
___________________________
________________________
Other reliefs just and equitable under the premises are likewise
prayedfor.
(ACKNOWLEDGMENT)
PLAINTIFF
FORM 6-SCC
FORM 7-SCC
_____________________________
_______________________________
_____________________________
_______________________________
_____________________________
_______________________________
__________________________,
__________________________,
Plaintiff,
Plaintiff,
vs. Civil Case No. ______________
vs. Civil Case No. ______________
For: _______________________
For: _______________________
__________________________,
__________________________,
Defendant.
Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
x- - - - - - - - - - - - - - - - - - - - - -x
MOTION TO PLEAD AS INDIGENT
MOTION FOR APPROVAL OF COMPROMISE AGREEMENT
_____________________, unto this Honorable Court, respectfully

alleges that:
The parties respectfully allege that:
1. I am a resident of ___________________;
1. Plaintiff filed this claim against defendant for:
2. My gross income and that of my immediate family does not

exceed __________________ ;
_____________ collection of sum of money

_____________ damages
3. I do not own real property with an assessed value of more than

(amount as provided in the Revised Rules of Court, as amended) as
shown by the attached Certification issued by the Office of the
City/Municipal Assessor and the City/Municipal Treasurers Office;
_____________ civil aspect of criminal case

_____________ enforcement of barangay agreement
4. Due to financial constraint, I cannot afford to pay for the

expenses of a court litigation as I do not have enough funds for
food, shelter and other basic necessities;
_____________ recovery of personal property

2. The parties have come to an amicable settlement and have
executed a compromise agreement with the following terms and
conditions. (copy terms and condition here)
55

3. The parties agree that the approval of this agreement by the

Court shall put an end to this litigation, except for purposes of
execution in case of default.
_______________________________________, 20_______.
_____________________________
____________________________
WHEREFORE, premises considered, the parties respectfully pray

that the court approve this agreement and render judgment on the
basis thereof.
Plaintiff Defendant
To the Branch Clerk of Court:
_______________________________________, 20_______.
_______________________ ________________________
Please submit the foregoing motion for the consideration of the

Court without hearing and further argument from the parties.
Plaintiff Defendant
__________________________ _________________________
Plaintiff Defendant
FORM 8-SCC
(Motion for voluntary dismissal of the claim and counterclaim)
FORM 9-SCC
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
__________________________,
__________________________,
Plaintiff,
Plaintiff,
vs. Civil Case No. ______________
vs. Civil Case No. ______________
For: _______________________
For: _______________________
__________________________,
__________________________,
Defendant.
Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
x- - - - - - - - - - - - - - - - - - - - - -x
JOINT MOTION
MOTION FOR EXECUTION
Plaintiff and defendant, unto this Honorable Court, respectfully

allege that:
Plaintiff/Defendant, unto this Honorable Court, respectfully alleges

that:
1. Plaintiff and defendant have mutually and voluntarily settled

their claim and counterclaim to the entire satisfaction of each
other; and
1. On _______________, a judgment was rendered by the Court,

the dispositive portion of which reads:
2. The judgment is final and unappealable.
2. The parties no longer have a cause of action against each other.
3. The defendant/plaintiff has not complied with the judgment.
WHEREFORE, premises considered, plaintiff and defendant

respectfully pray that the plaintiffs statement of claim and
defendants counterclaim incorporated in his response be
dismissed.
WHEREFORE, premises considered, it is respectfully prayed that a

writ of execution be issued to implement the judgment of the
Court dated __________________.
Other reliefs just and equitable under the premises are likewise
prayed for.
_______________________________________, 20_______.
56

_____________________________
Plaintiff Defendant
Plaintiff/Defendant
NOTICE OF HEARING
FORM 11-SCC
NAME OF DEFENDANT
(Referral to pairing judge)
(IF FILED BY PLAINTIFF)
NAME OF PLAINTIFF
_______________________________
(IF FILED BY DEFENDANT)
_______________________________
NAME OF CLERK OF COURT.
_______________________________
Please be notified that the undersigned will submit the foregoing

motion for the consideration and approval of the Court on
_________________
at
_______________________________________,
20_______.
________________________
__________________________,
Plaintiff/Defendant
For: _______________________
Plaintiff,
vs. Civil Case No. ______________
__________________________,
FORM 10-SCC
Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
_______________________________
ORDER
_______________________________
Plaintiff,
In view of the failure of judicial dispute resolution and there being

no agreement from the parties to let the undersigned continue
hearing the instant case, the record of this case is transmitted to
the Office of the Clerk of Court for immediate referral by the
Executive Judge to the Pairing Judge for hearing and decision
pursuant to Section 21 of the Rule of Procedure for Small Claims
Cases.
vs. Civil Case No. ______________
SO ORDERED.
For: _______________________
_______________________________________, 20_______.
__________________________,
______________________________
Defendant.
JUDGE
_______________________________
__________________________,
x- - - - - - - - - - - - - - - - - - - - - -x
AGREEMENT
FORM 12-SCC
Having failed to resolve the matter through Judicial Dispute

Resolution, plaintiff and defendant hereby agree that Judge
_________________ shall continue with the hearing on the instant
matter and hereby waive their right to have a different judge hear
the
case.
_______________________________________,
20_______.

_______________________________
_______________________________
_______________________________
___________________________ _______________________
57

__________________________,
vs. Civil Case No. ______________
Plaintiff,
For: _______________________
vs. Civil Case No. ______________
__________________________,
For: _______________________
Defendant.
__________________________,
x- - - - - - - - - - - - - - - - - - - - - -x
Defendant.
DECISION
x- - - - - - - - - - - - - - - - - - - - - -x
This is a small claims action for (state which of the claims or

demands below is the subject of the action filed):
DECISION BASED ON COMPROMISE AGREEMENT

[For money owed under any of the following:
Plaintiff
filed
this
case
_____________________
in
________________________.
against
the
defendant
amount
for
of
1. Contract of lease;
2. Contract of loan;
Defendant denied plaintiffs claim

_________________ and set up
_______________________.
on the ground of
a counterclaim for
3. Contract of services;
4. Contract of sale; or
The parties, however, reached an amicable settlement and

submitted to the court a compromise agreement, the terms and
conditions of which are as follows:
5. Contract of mortgage;
For damages arising from:
It appearing that the agreement is not contrary to law, morals,

good customs, public moral and public policy, and pursuant to
Articles 2028 and
1. Fault or negligence;
2. Quasi-contract; or
2037 of the Civil Code of the Philippines, the same is hereby

APPROVED and ADOPTED as the Decision of this court.
3. Contract;
The parties are hereby ordered to faithfully comply with the terms
and conditions of the agreement.
The enforcement of a barangay amicable settlement or an

arbitration award involving a money claim covered by this
Rulepursuant to Section 417 of Republic Act 7160, otherwise known
as The Local Government Code of 1991].
_______________________________________, 20_______.
Plaintiff alleges that (state material allegations and prayer in the

Statement of Claim).
________________________
JUDGE
Defendant alleges that (state reasons for denial of the claim and
other material allegations in the Response including counterclaims,
if any).
FORM 13 SCC
On (date), both parties appeared during the hearing conducted by

(state name of Judge who conducted the JDR. State whether
parties appeared personally or through a specially authorized
representative).

_______________________________
_______________________________
Considering the failure of the parties to arrive at any settlement of

the dispute, this court proceeded with the hearing of the case
which was terminated on __________________.
_______________________________
__________________________,
The issue to be resolved by this court is whether

_______________________________________________________
______.
Plaintiff,
58

Plaintiffs evidence consists of: (state documents of plaintiff,

affidavits submitted, if any, and statements made by plaintiff and
witnesses under oath during the hearing).
foreign legal systems but which has yet to be tried in the

Philippines is the small claims case processing method used by
small claims courts, often referred to as the Peoples Court, as it
comes most directly into contact with the citizenry of a jurisdiction.
Defendants evidence consists of: (state documents of defendant,

affidavits submitted, if any, and statements made by defendant
and witnesses under oath during the hearing).
Small claims courts are courts of limited jurisdiction that hear civil
cases between private litigants. Courts authorized to try small
claims may also have other judicial functions, and the name by
which such a court is known varies by jurisdiction: it may be known
by such names as county court or magistrates court. Small claims
This court finds that the claim of plaintiff (or defendant in a

counterclaim) is (state whether meritorious or devoid of merit)
under Article/Section (state the applicable provisions of law) or
pursuant to established jurisprudence (cite applicable
jurisprudence). In this case, this court found that (state first the
factual findings established by the evidence and then the legal
conclusions).
courts can be found in Australia, Canada, Ireland, Israel, New

Zealand, South Africa, Hong Kong, Singapore, the United Kingdom
and the United States.
B. The History and the Reforms of Small Claims Court
Wherefore, the (claim/counterclaim) is (granted/denied). This

court
orders
____________________
to
pay
to
_______________________ the amount of (state the monetary
award or damages) with interest of (if applicable under Civil Code
and/or settled jurisprudence) until fully paid.
1.
In the United States For almost a century now, small

claims courts have provided a form of alternative dispute
resolution (ADR) in the United States.
Originating around 1912 or 1913, these courts were

established primarily as a means for small businesses to
collect money from borrowers through a process that was
faster, less formal, and less expensive than traditional civil
litigation. Following the lead of the establishment of the initial
small claims court in Kansas, USA in 1912 or 1913, every state
in the United States has created some form of a small claims
court system.
SO ORDERED.
(Date of decision.)
(Signature)
Presiding Judge (or Pairing Judge in the absence of written
agreement of theparties that the case shall beheard by the
Presiding Judgewho conducted the JDR)
Although the financial claims limits, methods of procedure,

and overall structure vary from state to state, the concept is
essentially the same, i.e., that relatively minor disputes,
involving dollar amounts that are insufficient to warrant
processing the case through the normal court procedure,
justify expeditious and simplified handling.
Copy furnished:
All parties
Office of the Clerk of Court of ____________
The consumer justice reform movements of the 1960s and

1970s brought renewed research and interest in the small
claims courts. This movement emphasized the need for
reform of small claims courts to facilitate the adjudication of
consumer grievances.
RATIONALE of the Proposed Rule of Procedure for Small Claims

Cases
A. Introduction
Although consumer justice reformers were concerned that

businesses and corporations were more likely to use attorneys in
small claims courts thereby placing inexperienced individual
defendants at a disadvantage, studies showed that defendants with
an attorney were more likely to win against plaintiffs than
unrepresented defendants, whereas plaintiffs without attorneys
did just as well as represented plaintiffs against unrepresented
defendants.
The most significant recurring theme of every program for judicial

reform of the Supreme Court is the pressing need for a more
accessible, much swifter and less expensive delivery of justice.
Undeniably, the slow grind of the wheels of justice is the result of a
variety of factors, foremost of which is the perennial congestion of
court dockets which has transformed court litigation into a
protracted battle, that invariably exhausts the time, effort and
resources of party-litigants, especially the poor. Many strategies
have been devised to unclog heavy court dockets, and one such
approach is the use of mandatory Pre-trial and Alternative Dispute
Resolution mechanisms such as mediation, arbitration and
conciliation. Another scheme that has been widely used in many
The result was an appraisal of the need to bar attorneys and

collection agencies from the small claims courts.
Small claims courts in the United States are often considered courts
of equity and are not necessarily bound by the letter of the law.
These courts have flexibility to use more holistic approaches to
59

problem solving and dispute resolution than what is typical. Most

judges act according to what makes sense to them, even if this
means setting aside legal formalities. Moreover, traditional rules of
evidence and court processes do not apply.
expected to play the role of interventionist and assist litigants in

presenting their own cases personally at small claims hearings. Like
adjudicators in other parts of the world, district judges in these
countries have been encouraged to intervene to an increasing
extent at small claims hearings. Such interventionism is, indeed,
vital and although there may be wide variations between
jurisdictions in the methods that are adopted to deal with small
claims, the idea of the adjudicator freely entering the arena of the
dispute to assist unrepresented litigants is fundamental in almost
all matters about small claims.
The rules of small claims courts emphasize conciliation and

pragmatism over winning, and rules of evidence and civil procedure
have been simplified to allow maximum access to the courts by
individuals unable to afford an attorney.
2.
Small Claims Courts in Canada All provinces in Canada

have procedures for small claims. In general, there are
two different models. In most provinces, as in British
Columbia, Alberta, and new Brunswick, small claims
courts operate independently of the superior courts. In
other jurisdictions, the small claims courts are either
branches or divisions of the superior courts
4.
The small claims courts are meant to be an easier and less

expensive way to resolve disputes than in the superior courts.
Small Claims Court procedure is regulated both by provincial
legislation and rules in most provinces. It is simplified and less
costly with no strict pleading requirements and formal
discovery process.
3.
Small Claims Courts in England and Wales From early

times, England had a tradition of local courts where
ordinary men could pursue justice in the form of civil
claims without the aid of lawyers. Some were set up by
local statutes, others by custom. These local courts could
not keep pace with the changes in society brought about
by the Industrial Revolution. By the 1830s, the decade of
great liberal reform, there was a great public awakening
to the urgent need for constitutional reform in the
administration of justice. The result was the County
Courts Act of 1846, described in its preamble as an Act
For The More Easy Recovery of Small Debts and
Demands in England. It was initially a poor mans court.
Andrew Amos, the first judge at Marylebone County,
described regular litigants as being a great proportion
of the poorer classes, gaining their livelihoods by
bricklaying, gardening or other out of door occupations
and who subsist upon credit in the winter months, and
complaints against whom are usually issued in the
summer months. The county courts jurisdiction for
claims brought in contract and tort gradually increased
from 50 in 1888 to 5,000 in 1984.
The purpose and structure of the county court system has in many
ways remained the same since 1846. The aim is still to make civil
justice available locally there are now 223 county courts in
England and Wales. They have continued to be responsive to the
needs of smaller cases which, although small in terms of their
financial value, are important to the litigants involved. However,
recent decades have seen two major changes in relation to small
claims first, the introduction of a dedicated small claims
procedure in 1973 and secondly, the introduction of the Civil
Procedure Rules reforms of 1998 with emphasis on proportionality.
Since January 1996, when the small claims limit in England and
Wales was trebled overnight to 3,000, district judges have been
60
Small Claims Tribunals in Singapore The Small Claims

Tribunals in Singapore have been in operation since 1
February 1985. The Tribunals have fulfilled an integral
role in providing the community with accessible justice
for civil claims involving small amounts. Various features
and programs have been put in place to enhance access
to justice for the community, by removing barriers such
as cost, delay, distance, time and inconvenience. The
Tribunals, constituted as part of the Subordinate Courts
of Singapore, were established for the primary purpose
of providing a quick and inexpensive avenue for the
resolution of small claims arising from disputes between
consumers and suppliers. There was a need for a less
expensive and less formal forum to deal with such small
claims. Hence, in 1985, the Small Claims Tribunals Act
was passed, which authorized the setting up of one or
more Tribunals to help consumers who have claims of up
to $2,000 relating to disputes arising from contracts for
the sale of goods or the provision of services.

Rule 01
How come it mentions criminal cases and defines criminal actions

when it is supposed to be 1997 Rules on Civil Procedure?
GENERAL PROVISIONS
NO, Rule 1 is the general provision for the entire Rules of Court.
You look at the title, These rules shall be known as the Rules of
Court. This is the common denominator from the first to the last
Rule. Thats why it says there special proceedings, civil cases and
criminal cases.
SECTION 1. Title of the Rules. These Rules

shall be known and cited as the Rules of
Court.
The Rules of Court do not have retroactive
effect. They can, however, be made
applicable to cases pending at the time of
their passage and therefore are retroactive in
that sense.
xxxxx
(a) 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.
The rule-making power of the SC has the following

limitations:
1)
2)
3)
A civil action may either be ordinary or

special. Both are governed by the rules
for ordinary civil actions, subject to the
specific rules prescribed for a special
civil action.
Simplified and inexpensive procedure for the

speedy disposition of cases;
Uniform for all courts of the same grade; and
Shall not diminish, increase or modify
substantive rights (Art. VIII Sec. 5[5], 1987
Constitution.
xxxxx
In the interest of just and expeditious

proceedings, the Supreme Court may
suspend the application of the Rules of
Court and except a case from its
operation because the Rules were
precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice.
What is an action?
An action is the legal and formal demand of ones right from
another person made and insisted upon in a court of justice.
(Bouviers Law Dictionary)
One party prosecutes another for the enforcement or protection of
a right or the prevention or redress of a wrong.
SEC. 2. In what courts applicable. These

Rules shall apply in all the courts, except
as otherwise provided by the Supreme
Court.
What is a claim?
It is a right possessed by one against another.
The moment said claim is filed before a court, the claim is
converted into an action or suit.
Section 2, states in what court or courts the rules apply as it says

these rules shall apply in all the courts except as otherwise
provided by the Supreme Court. Meaning, applicable to all courts
except when the SC say otherwise.
Action and suit

In this jurisdiction, it is settled that the terms action and suit
are synonymous. (Lopez v. Compania de Seguros, 16 SCRA 855).
For example: The SUMMARY RULES on procedure which is

applicable to some cases in the MTC.
Civil Action and Criminal Action
Another example of when the SC says otherwise is Section 4, that

the rules shall not apply to election cases, land registration,
cadastral, naturalization, insolvency proceedings and other cases
not herein provided for except by analogy. This is actually not a
new provision. It used to be in Rule 143, now it is in Rule 1.
A CIVIL ACTION is one by which a party sues another for the

enforcement or protection of a right, or the prevention or redress of
a wrong. (Sec. 3[a] Rule 1). So the purpose of a civil suit is to
enforce or protect your right or to prevent or redress a wrong.
Sec. 3. Cases governed. These Rules shall

govern the procedure to be observed in
actions, civil or criminal, and special
proceedings.
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)
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 (People vs. Godoy @$# SCRA
64).
xxxxxx
61

CLASSIFICATION OF CIVIL ACTION

I.
Give an example of a case where in the absence of a special

provision in the rules on special civil actions the court had to apply
the rules on ordinary civil actions by analogy. The case of
As to NATURE (Section 3 [a])

a.) Ordinary Civil Actions
b.) Special Civil Actions
AMBERTI vs CA - 195 SCRA 659 [1991]

FACTS: This case involved a petition for certiorari (special civil
action under Rule 65) and then before the respondent could
answer the petition, he withdrew the petition. Later on he
changed his mind and re-filed the petition. The question that
was asked by the SC is when you file a special civil action for
certiorari and then before the other party could answer you
withdraw it, is the withdrawal with or without prejudice? Can
you re-file it?
II. As to CAUSE or FOUNDATION:

a.) Real Actions
b.) Personal Actions
c.) Mixed Actions
III. As to PLACE OF FILING
a.) Local Actions
b.) Transitory Actions
IV. As to OBJECT
a.) Action In Personam
b.) Action In Rem
c.) Action Quasi In Rem
There is no rule in Rule 65 answering that question so the SC

had to resort to the ordinary rules by analogy.
HELD: Certiorari is similar to appeal although it is not really an
appeal. And the SC looked at the law on appeal. What
happens when you perfect your appeal and then later on you
withdraw your appeal? What will happen to the order or
judgment? Rule 50 says that if you withdraw the appeal, the
judgment appealed from will now become final and
executory. Therefore, since it is now final and executory, you
cannot change it anymore.
I. CLASSIFICATION AS TO NATURE
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
The special civil actions are governed by Rules 62 to 71. Any action
not among those mentioned is automatically ordinary.
What are the special civil actions?
Applying the foregoing rules in a supplementary manner (or

by analogy), upon the withdrawal of a petition in a special civil
action before the answer or comment thereto has been filed,
the case shall stand as though no appeal has been taken, so
that the judgment or order of the lower court being
questioned becomes immediately final and executory. Thus, a
resolution granting the withdrawal of such a petition is with
prejudice and petitioner is precluded from bringing a second
action based on the same subject matter.
Rules 62 to 71:
Interpleader,
Declaratory Relief,
Certiorari, Prohibition, Mandamus,
Quo Warranto,
Expropriation,
Foreclosure of Mortgage,
Partition,
Forcible Entry, Unlawful Detainer and
Contempt.
Now, there are other classifications of civil actions which are not
expressly stated in Section 3. The only one stated there is ordinary
and special.
There is a new one Review of Final Decisions or Resolutions of the

COMELEC and COA under Rule 64, but actually it says there, it is
governed by Rule 65 which governs Certiorari.
CLASSIFICATION AS TO CAUSE OR FOUNDATION:

REAL, PERSONAL or MIXED ACTIONS
Real Action
Q: What is so important in distinguishing a special civil action from

an ordinary civil action?
A REAL ACTION is briefly described as an action where the issue or

the subject involved is title to, ownership, possession of or interest
over a real property like accion publiciana, forcible entry, unlawful
detainer, foreclosure of mortgage or real property, partition of real
property. (Sec. 1, R 4) (c.f. Section 19, BP 129 controversy relates
to real property)
A: What makes an action special is simply because of the fact that

there are some specific rules prescribed for them which are not
found in other rules. But to say that the rules on ordinary civil
actions do not apply to special civil actions is false. The law is very
clear. Both are governed by the rules on ordinary civil actions
subject to the specific rules.
It is founded on privity of real estate and filed in the court of the

place where the property or any part thereof is situated.
Therefore, in case of conflict between the specific rule governing a

particular type of civil action and the ordinary, then you follow the
specific provision. But if the rules on special civil actions are silent,
apply the ordinary rules.
62

Personal action
All other actions or, when the issue is not one of those meaning,
it is founded on privity of contract, or on quasi-delict, such as
actions for a sum of money, or damages arising from breach of a
contract, or for the enforcement or resolution of a contract, or for
recovery of personal property, these are the PERSONAL ACTIONS.
(Casilan vs. Tomassi, 90 Phil. 765; Cachero vs. Manila Yellow
Taxicab, 101 Phil. 523; Bautista vs. Piguing, L-10006, Oct. 31, 1957)
However, where a complaint is denominated as one of 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. (Gochan v. Gochan,
372 SCRA 356)
It is filed in the court where the plaintiff or any of the defendants

resides, at the option of the plainitff.
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 or property. The docket
fee therefore, should be computed based on the value of
the property and not based on the docket fee for specific
performance (National Steel Corporation vs. CA 302 SCRA
522).
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 vs. Coloso 1 SCRA 272)
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 (Emergency Loan Pawnshop
Inc. vs. CA 353 SCRA 89).
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. DBP, 71 SCRA
290)
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)
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 Section 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 vs. Total Office Products and
Services [Topros], Inc.,471 SCRA 500).
Mixed Action
Some textwriters give a third classification: the MIXED ACTIONS
where there is a mixture of real and personal actions. Mixed
actions are such as pertain in some degree to both real and
personal and, therefore, are properly reducible to neither of them,
being brought for the specific recovery of land and for damages
sustained in respect of such land. (Dela Cruz vs. Seminary of
Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages it is a
mixed action. However, it is more of real rather than personal. If
the damage is only incidental, then it is more of a real action rather
than a personal action like the case of TACAY.
In a real action realty or an interest therein is the subject matter of
the action.
However, not every action 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 specific performance is a personal action as

long as it does not involve a claim of or recovery of
ownership of real property. (Siosoco v. CA, 303 SCRA 186
citing La Tondena Distillers v. Ponferrada, 264 SCRA 540)
An action for damages to real property, while involving a

real property, does not involve any of the issues
mentioned.
An action to recover possession of real property plus
damages is a real action because possession of the real
property is involved. The aspect of damages is merely an
incidental part of the main action, i.e., recovery of
possession of real property. However, an action to
recover possession of a personal property is a personal
action.
Where the allegations as well as of the complaint do not
claim ownership of the lots in question or ask for
possession of the same but instead 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. Tuazon & Co., Inc. 25 SCRA 529)
63

LOCAL ACTIONS and TRANSITORY ACTIONS
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 the title to and possession of the lot in question.
The action is a real action (Espineli vs. Santiago 107 Phil
830).
LOCAL ACTION is an action which can only be instituted in a

particular place.
Good examples of local actions are real actions. Real actions are
also automatically local actions. They can only be instituted in the
place where the property is situated. This is already provided by
law (e.g. accion publiciana, forcible entry, unlawful detainer can
only be filed where the land is situated.)
Where the sale is fictitious, with absolutely no

consideration, 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 but one for
recovery of a fishpond, a real action (Pascual vs. PASCUAL
73 Phil. 561).
TRANSITORY ACTIONS are those which follow the party wherever

he may reside. (1 Am. Jur. 430) Personal actions are transitory its
filing is based on where the plaintiff or where the defendant
resides at the option or election of the plaintiff. It is based on the
residence of the parties.
Significance of the distinction
CLASSIFICATION AS TO OBJECT OR PURPOSE
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.
ACTIONS IN PERSONAM, IN REM and QUASI IN REM

ACTIONS IN PERSONAM vs. ACTIONS IN REM
Definition
In personam action
A real action is local, i.e., its venue depends upon the location of
the property involved in the location. 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 apportion
thereof is situated. (Sec. 1 Rule 4)
If the technical object of the suit is to establish a claim

generally against some particular persons, with a judgment
which, in theory, at least, binds his body or to bar some
individual claim or objection, so that only certain persons are
entitled to be heard, the action is IN PERSONAM. (Grey Alba
vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
A personal action is transitory,i.e., its venue depends upon the

residence of the plaintiff or the defendant at the option of the
plaintiff. 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).
An example is an action for specific performance; action for

breach of contract
In rem action
But, if the object of the suit is to bar indifferently all who
might be minded to make an objection of any sort against
the rights sought to be established, and if anyone in the
world has a right to be heard on the strength of alleging facts
which, if true, show an inconsistent interest, the action is IN
REM. (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs.
Robles, 81 Phil. 421)
Hence, 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
(b) An application of the rules on venue under Rules 4.
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.
An example is a probate proceeding, cadastral proceeding.

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
vs. Jensen 448 SCRA 663)
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. vs. CA 353
SCRA 89).
Examples:
A) An action for sum of money;
B) An action for damages.
CLASSIFICATION AS TO THE PLACE OF FILING:
64

In an action in personam, no other than the defendant is

sought to be held liable, not the whole world.
A: No it binds the whole world or anybody.

2)
To simplify the definition:

ACTION IN PERSONAM is one where the purpose is to bind the
parties or where any judgment that the court will render in that
case binds only the parties to the action and their privies or their
successors-in-interest.
Take note that an action in rem and in personam have often

been confused with the classification of real and personal
action, that an action in personam is also a personal action,
or, when an action is in rem it is also a real action.
ACTION IN REM is one where the purpose is to bind any and

everyone or where the judgment which the court will render in the
case binds not only the parties to the case but the whole world,
then the action is in rem.
It is wrong. The basis of the classification is different. An

action could be as to cause or basis a real action. As to
object, it could be in personam. In the same manner, it
could be a personal action but an action in rem.
To follow the language of the SC in the case of:
3)
E files a case against C to recover the possession of a piece

of land. It is a REAL action because the subject is possession
or ownership of real property. But because the purpose is
to bind only E and C it is also an action IN PERSONAM. It is a
real action as to cause, but as to object, it is in personam.
4)
P filed a case to annul his marriage with his wife D. It is a

PERSONAL action because it does not involve title to,
ownership etc., of his real property. It is about status. But it
is also IN REM because the judgment therein is binding
against the whole world.
5)
An action for ejectment is a real action because it involves

the issue of possession of real property. It is also, however,
an action in personam because the action is directed
against a particular person who is sought to be held liable
(Sec. 1 Rule 4; Domagas vs. Jensen 448 SCRA 663)
6)
An action for delaration of nullity of a marriage is a

personal action (Tamano vs. Ortiz 291 SCRA 584;
Romualdez-Licaros vs. Licaros 401 SCRA 762) because it is
not founded on real estate. It is also in rem action because
the issue of the status of a person is one directed against
the whole world. Ones 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 and in personam action.
7)
An action for specific performance is an action in personam

(Jose vs. Boyon 414 SCRA 217). An action for specific
performance and/or rescission is not an action in rem
(Gomez vs. CA 425 SCRA 98).
8)
A cadastral proceeding is an action in rem (In Re Estate of

Johnson 39 Phil. 156).
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. vs. CA 212 SCRA 623; Ting vs. Heirs of
Diego Lirio 518 SCRA 263).
CHING vs. CA 181 SCRA 9
HELD: Actions in personam and actions in rem differ in that

the former are directed against specific persons and seek
personal judgments, while the latter are directed against the
thing or property or status of a person and seek judgments
with respect thereto as against the whole world.
Action in personam
EXAMPLE:
An action for the Recovery of land or accion publiciana.
The case is filed by P against D and after trial the court rendered
judgment in favor of P ordering D to deliver the land to P. But here
comes X claiming the same property. Is X barred from making his
claim because the court, in the case of P vs. D already declared that
P is entitled to the property? Is X bound by that judgment?
A: NO, because X is not a party to that case. She cannot be bound
by a judgment where she is not a party. Hence, the action between
P and D is an action in personam.
Action in Rem
1)
When an illegitimate child files a case against the father,

for compulsory recognition and got a favorable judgment
his/her status as a recognized child is not only binding on
his/her father but is binding on the whole world.
Action for annulment of marriage or declaration of nullity

of marriage. Suppose the husband (H) files a case against
his wife (W) to annul their marriage. After trial, the court
rendered judgment annulling the marriage and it became
final. So the parties are now both SINGLE.
H meets another girl, A, and courted her and proposed
marriage.
Can A say the she I cannot marry H because I know you
are married and as far as I am concerned I am not bound
by the judgment of annulment in the case between P
and D because she was a not a party therein? When the
court ruled in the case between H and W that the
marriage is annulled is that judgment binding only on H
and W, the parties therein
10) An action to recover real property is a real action. It is

however, also an action in personam for it binds only a
particular individual (Republic vs. CA 315 SCRA 600)
65

QUASI IN REM
If the action is in personam the court must acquire jurisdiction over

the person of the defendant, thru personal service of summons.
Service of summons by publication is not allowed.
Text writers gave a sort of third classification as to object. This is

called action quasi in rem. QUASI means almost. So, quasi in
rem is almost in rem. Actually, it is in personam but almost in rem.
But if it is in rem jurisdiction over the person of the defendant is

not required hence service of summons by publication is sufficient.
Q: Define an action quasi in rem.
Such is also true to quasi in rem action. What is important is that

the court acquires jurisdiction over the res.
A proceeding to subject the interest of a named defendant over a

particular property to an obligation or lien burdening it. Judgment
is binding upon particular persons.
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
An action quasi in rem is actually in personam because it is directed

only against a particular individual but the purpose of the
proceeding is to subject his property to the obligation or lien
burdening it. The object of the case is the sale or other disposition
of property of the defendant over which you have a right or lien
over the property.
Q: Define a special proceeding.

A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which
a party seeks to establish a status, a right, or
a particular fact. (2a, R2)
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 thereof to the obligation or lien burdening thje property
(Asiavest Limited vs. CA 296 SCRA 539).
Special proceedings should not be confused with a civil action.

Special Proceedings are governed by Rules 72-109 of the Rules of
Court.
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 Espanol-Filipino vs. Palanca 37 Phil. 921).
Distinguish a civil action from a special proceeding.

A: The following:
Examples of actions quasi in rem:
1.)
(a) Action for partition;

(b) Action for accounting.
(c) Such actions are essentially for the purpose of affecting
the defendants interest in the property and not to
render a judgment against him (Valmonte vs. CA 252
SCRA 92);
(d) attachment;
(e) foreclosure of mortgage (Banco Espanol Filipino vs.
Palanca 37 Phil. 921; Sahagun vs. CA 198 SCRA 44).
A CIVIL ACTION is one by which a party sues

another for the enforcement or protection of
a right, or the prevention or redress of a
wrong, whereas,
A SPECIAL PROCEEDING is a remedy by which a
party seeks to establish a status, a right, or a
particular fact;
2.)
ILLUSTRATION: An action to foreclose a mortgage is the best

example of a civil action quasi in rem because there is a defendant
(mortgagor) and the object of the case is to have the property
mortgaged sold or disposed of in order to satisfy the mortgage lien
of the mortgagee. It is in personam because it is directed only
against the person who mortgaged to you but once the property is
foreclosed, practically everybody has to respect it. Thats why it is
called quasi in rem.
In a civil action, there are two (2) definite and

particular adverse parties, the party who
demands a right, called a plaintiff, and the
other whom the right is sought, called a
defendant, whereas,
In a SPECIAL PROCEEDING, while there is a definite
party petitioner, there is no definite adverse
party as the proceeding is usually considered
to be against the whole world;
3.)
Or, to borrow the language of the SC in simplifying the term quasi
in rem, quasi in rem means against the person in respect to the
res, against the mortgagor in respect to the thing mortgaged.
A CIVIL ACTION requires the filing of formal

pleadings, whereas
In a SPECIAL PROCEEDING, relief may be obtained

by mere application or petition;
Importance of the distinction

4.)
It determines whether the court must acquire jurisdiction over the

person of the defendant and thus determine the mode of serving
summons.
66
The period to appeal in CIVIL ACTIONS is generally

15 days and the requirement is the filing of a
notice of appeal, whereas

In SPECIAL PROCEEDINGS the period to appeal is 30

days and aside from notice of appeal, the law
requires the filing of a record on appeal.
it. That's the difference between a special proceeding and a civil

action.
Sec. 4. In what cases not applicable. - These
Rules shall not apply to election cases, land
registration, cadastral, naturalization and
insolvency proceedings, and other cases not
herein provided for, except by analogy or in a
suppletory
character
and
whenever
practicable and convenient. (R143a)
Of course the basic distinction is found in Section 3 a civil action is

one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
Whereas, a special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact.
The object of a civil action is to enforce or protect a right or to
prevent or redress a wrong. But the object of a special proceeding
is only to establish a status, a right or a particular fact.
The Rules of Court do not apply to certain proceedings in court.

Q: What court proceedings where the Rules of Court are not
applicable?
If a creditor sues the debtor to collect an unpaid loan, is that a civil

action or a special proceeding? That is a civil action because the
creditor wants to enforce or protect his right to collect. The
creditor is compelling the debtor to pay. It is adversarial.
A: Election cases, land registration cases, cadastral cases,

naturalization cases, insolvency proceedings, and other cases not
herein provided for except by analogy of for suppletory purposes.
A good example of a special proceeding is a petition for ADOPTION.

It is a special proceeding because the purpose is to establish a
status of paternity and filiation between the adopter and adopted
who may not be related to each other.
In these cases, the Rules of Court are suppletory in character. In

case of conflict between election law and the Rules of Court, forget
the Rules of Court. But when the Election Code is silent, you apply
the Rules of Court by analogy or for suppletory purposes.
What is adoption?
There are some election cases which fall within the jurisdiction of
the courts, not necessarily COMELEC. For example, violation of
election code where the party may be adjudged to go to jail. That is
a criminal case. That is governed by the rules on criminal
procedure. It is more on imprisonment.
This is how an author describes it.

Adoption is one of the sacred mysteries of
the law. It concerns the making of a natural
person as a legitimate child of another person
without the intervention of sex. A man
becomes a father of the child he did not sire.
A woman becomes the mother of a child she
did not bear. It is through the magic or fiction
of the law that adopters become parents of
children unrelated to them by blood, or if
related, the relationship is one of illegitimacy.
Sec. 5. Commencement of an action. - A civil

action is commenced by the filing of the
original complaint in court. If an additional
defendant is impleaded in a later pleading,
the action is commenced with regard to him
on the date of the filing of such later
pleading, irrespective of whether the motion
for its admission, if necessary, is denied by
the court. (6a)
So you can adopt you own illegitimate child for the purpose of
improving his status. So, when you file a petition for adoption, you
are not suing somebody to enforce or protect a right or prevent or
redress a wrong. The purpose is to create a status of parent and
child between 2 people who are not related to each other.
Q: When is a court action deemed commenced?

A: A civil action is commenced by the filing of the original complaint
in court. Of course this is not really complete. The filing of the
original complaint in court must be accompanied by the payment
of the correct docket fee. A complaint is not deemed filed until the
docket fee is paid. This is important to determine the exact date
that the action has commenced because it is from that moment
that the running of the prescriptive period is interrupted.
And when you file a petition for adoption, you are not filing a case
against anybody. The case is not a fight between two parties.
There is a petitioner, the one who files, but there is no definite
defending party. But it is directed against the whole world because
once the adoption is granted, then, as far as the whole world is
concerned, they have to respect the status of the adopted as a
child of the adopter. It is in rem. Generally, special proceedings are
in rem.
Civil actions are deemed commenced from the date of the filing
and docketing of the complaint, without taking into account the
issuance and service of summons (Cabrera vs. Tiano, GR No. L17299, July 31, 1963).
But since it is directed against the whole world, anyone in the

world can come forward and oppose the petition, hence,
publication is required. There is no particular person as defendant
but in reality, anybody in the world can come forward and oppose
67

If the complete amount of the docket fee is not paid, the

prescriptive period continues to run as the complaint is deemed
not filed (Feria, 2001, p. 208)
So, the purpose of procedure is to help the hand that dispenses

justice and not to tie these hands. Otherwise, the courts will
become mere robots. And, as much as possible, courts should avoid
technicalities to give way to the realities of the situation.
An action can be commenced by filing the complaint by registered

mail, in which case, it is the date of mailing that is considered as
the date of filing and not the date of the receipt thereof by the
clerk of court.
In one case, Lawsuits, unlike duels, are not to be won by a rapiers

thrust. (Alonzo vs. Villamor, 16 Phil. 315)
Thats why the SC said in another case:
The second sentence of Section 5 states that, If an additional

defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such
later pleading
SANTOS vs. CA 198 SCRA 806
HELD: Procedural rules are not intended to hamper litigants

or complicate litigation but, indeed, to provide for a system
under which suitors may be heard in the correct form and
manner and at the prescribed time in a peaceful
confrontation before a judge whose authority they
acknowledge. The other alternative is the settlement of their
conflict through the barrel of a gun.
Example: Today (November 19, 1997), I filed a complaint against A.

So, the action is commenced on Nov. 19, 1997. However next
month, say, December 19, if there is an additional defendant, the
date of the commencement of the action with regards to the
additional defendant is not the date when the original action is
filed, but on the date when he was included in the amended
pleading.
Meaning, the purpose of the rules is for people to fight each other
in a civilized way. If you cannot accept the judicial system, what is
your alternative? The only alternative is to shoot your opponent.
We will settle our conflict through the barrel of a gun.
How do you interpret or construe the Rules of Court?

Sec. 6. Construction. - These Rules shall be
liberally construed in order to promote their
objective of securing a just, speedy and
inexpensive disposition of every action and
proceeding. (2a)
For all its shortcomings and its defects, the judicial system is still
the civilized way of dealing with your opponent.
BAR QUESTION: When may lapses in the literal observance in the
Rules of Court be excused?
The purpose of Procedural Law is to hasten litigation. So you do

not interpret it to prolong a case. That is based on the principle of
liberal construction.
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL 77 Phil. 523
Cases should, as much as possible, be determined on the merits

after the parties have been given full opportunity to ventilate their
causes and defences, rather than on technicality or some
procedural imperfection. After all, technical rules of procedure are
not ends in themselves but are primarily devised to help in the
proper and expedient dispensation of justice. In appropriate cases,
therefore, the rules may be construed liberally in order to meet
and advance the cause of substantial justice (Land Bank vs. Celad,
GR No. 164876, Jan. 23, 2006)
HELD: Lapses in the literal observance of a rule of procedure

will be overlooked:
1)
2)
3)
4)
DE GUZMAN vs SANDIGANBAYAN - 256 SCRA 171

HELD: The Rules of Court was conceived and
promulgated to set forth guidelines in the dispensation
of justice but not to bind and chain the hand that
dispenses it, for otherwise, courts will be mere slaves to
or robots of technical rules, shorn of judicial discretion.
That is precisely why courts in rendering real justice have
always been, as they in fact ought to be, conscientiously
guided by the norm that when on the balance,
technicalities take a backseat against substantive rights,
and not the other way around. Truly then, technicalities,
should give way to the realities of the situation.
when they do not involve public policy;

when they arose from an honest mistake or
unforeseen accident;
when they have not prejudiced the adverse party;
and
when they have not deprived the court of its
authority.
One final note, while it is true that the Rules of Court should be
liberally construed as a general rule, there are certain provisions
which according to the SC, should be strictly construed because
they were intended precisely to minimize delay. These are
provisions on:
1)
2)
3)
reglementary periods;
rule on forum shopping;
service of summons
A good example would be provisions which prescribe the time

during which certain acts are going to be done, like the filing of an
68

answer, because if you will disregard this, it will promote more

delay rather than expedite litigations.
Another example is the filing of a notice of appeal. These are the
provisions which are to be strictly construed because while it is
true that the Rules of Procedure are to be liberally construed, it is
not a license to completely ignore these rules. Even the SC made
the warning. Like in the cases of
ANTONIO vs. CA 167 SCRA 127
HELD: It is the common practice of litigants who have no
excuse for not observing the procedural rules to minimize the
same as mere technicalities. Then they cry for due process.
These procedural rules are in fact intended to ensure an
orderly administration of justice precisely to guarantee the
enjoyment of substantive rights.
LIMPOT vs. CA 170 SCRA 367
HELD: Procedural rules are not to be belittled or dismissed

simply because their non-observance may have resulted in
prejudice to a party's substantive rights, as in this case. Like all
rules, they are required to be followed except only when for
the most persuasive of reasons they may be relaxed to relieve
a litigant of an injustice not commensurate with the degree of
his thoughtlessness in not complying with the procedure
prescribed. While it is true that a litigation is not a game of
technicalities, this does not mean that the Rules of Court may
be ignored at will and at random to the prejudice of the
orderly presentation and assessment of the issues and their
just resolution.
This reminds me of a lawyer who did not comply with the rules and
he was arguing that the rules should be liberally construed. And
then the judge says: There is a thin line between liberal
construction of the rules and gross ignorance of the rules! It is
either you did not follow the rules strictly or you do not really know
the rules.
The power of the SC to promulgate rules concerning pleadings,
practice, and procedure includes the power to suspend the
effectivity of such rules to provide an exception from the operation
of said rules. It is within the inherent power of the Supreme Court
to suspend its own rules in a particular case in order to do justice
(De Guia vs. De Guia, GR No. 135384, April 4, 2001).
Reasons which would warrant the suspension of the Rules:
1)
2)
3)
4)
5)
the existence of special or compelling circumstances;

the merits of the case;
a cause not entirely attributable to the faault or negligence
of a party favored by the suspension of the rules;
a lack of any showing that the review sought is merely
frivolous and dilatory and
the other party will not be unjustly prejudiced thereby
(Sarmiento vs. Zaratan, GR No. 167471, Feb. 5, 2007)
69

ORDINARY CIVIL ACTIONS
constitute a cause of action since damages are merely part of the

remedy allowed for the injury caused by a breach or wrong.
Rule 02
Injury is the illegal invasion of a legal right while damage is the loss,
hurt, or harm which results from the injury.
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. Every ordinary civil action must be based on a
cause of action. (n)
Cause of Action not an issue in administrative cases

While the existence 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. Purisima, 494 SCRA
448)
Section 1 of Rule 1 is entitled cause of action. Section 1 expresses

the principle that every ordinary civil action must be based on a
cause of action. In other words, there cannot be a case unless you
have a cause of action.
Under Rule 16, one of the grounds for a motion to dismiss is that
your pleading states no cause of action.
Cause of Action in Specific Cases

In breach of contract cases, a cause of action does not require an
allegation of the negligence of the defendant but merely the
following elements:
Sec. 2. Cause of action, defined. - A cause of

action is the act or omission by which a party
violates a right of another. (n)
Q: Define cause of action.
A: CAUSE OF ACTION is an act or omission by which a party violates
a right of another.
ELEMENTS OF A CAUSE OF ACTION
Existence of legal right in favor of the plaintiff by

whatever means and under whatever law it arises or is
created;
2)
a correlative obligation on the part of the named

defendant to respect and not to violate such right; and
3)
an 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 action for recovery of
damages or other appropriate relief.
The existence of a contract, and
b.)
The breach of the contract. (Calalas v. CA SCRA 356; FGU

Insurance Corp. v. GP Sarmeinto Trucking Corp. 386
SCRA 312)
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 on a
breach of contract. 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 & Art. 1756 CC)
There are 3 main elements:

1)
a.)
In quasi delict, negligence, as an element, must be alleged and

proved. (Art. 2176 CC) but the negligence of those persons
described under Art. 2180 of the Civil Code, although based on
quasi delict is presumed.
Under Art. 2180, following the well-recognized doctrine of vicarious
liability, certain persons like the father, mother, guardian, owners
and managers of an establishment or enterprise, employee, the
State, and teachers or heads of establishments of arts and trades
are, under specified conditions, liable for acts of persons for whom
they are responsible.
Briefly stated, it is the reason why the litigation has come about, it
is the act or omission of defendant resulting in the violation of
someones right. (Phil. National Construction v CA, 514 SCRA 569;
Agrarian Reform Beneficiaries Association v. Nicolas GR No.
168394, Oct. 6, 2008)
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 employers 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.
There is a fourth element added by some cases and commentators

the element of damage suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief are
you asking for? There can be no action where no damage is
sustained.
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
As a matter of fact, in a recent case, the SC remarked that wrong or

injury without damage or damage without wrong does not
70

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 vs. Calaunan GR No. 150157
January 25, 2007)
do not have to enter into a contract with a person saying

you will not bump him;
VIOLATION or delict or wrong the account fell due and

the debtor is supposed to pay the creditor, but the former
did not pay the latter;
Cause of action must be unmistakably stated

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. 1[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 cause of
action required by substantive law must clearly appear from the
mere reading of the complaint. To avoid an 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!
DAMAGE the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a complaint
against somebody, you do not prepare the complaint by
enumerating the elements. In other words, you just narrate the
facts. It is up for the defendant to analyze. It is the duty of the
lawyer to analyze the complaint whether the 4 elements are
present.
Where there is a defect or an insufficiency in the statement of the

cause of action, a complaint may be dismissed not because of the
absence or a lack of a cause of action but because the complaint
states no cause of action. The dismissal will therefore, be
anchored on a failure to state a cause of action.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You

are crossing the street and you are bumped by X who was driving a
car causing you injuries and being hospitalized. You also failed to
report for work.
RIGHT it is the right of every person not to be

molested. You have the right to walk peacefully and not
to be harmed;
OBLIGATION it is the obligation of every person driving

to be careful so that he will not bump other people. You
RIGHT the creditor has the right to collect;

OBLIGATION every debtor has the obligation to pay;
DAMAGE I have not recovered the money;
DELICT or wrong there is NO delict yet.
Why? There is no delict yet because the account is payable next

year. So, it is still premature to file a collection case now because
one element is missing. It is not based on a cause of action and is
dismissible under Rule 16.
A borrows money from B promising to pay on a date certain. Upon

due date, A did not pay. Does B have a cause of action? Let us
examine whether the elements are present.
OBLIGATION The defendant has the obligation to pay back

the loan under the law on contracts;
DAMAGE I have to spend money in the hospital and I

lost my income.
EXAMPLE of Cause of Action:
ANOTHER EXAMPLE: D borrowed money from you last year

payable in January2010 but because you are in dire need of money
you demanded payment. Suppose D does not pay can you file an
action to collect the amount from him? Do you have a cause of
action?
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. CA, 287 SCRA 662)
RIGHT the right of the creditor to get back his money;
DELICT or wrong because of your recklessness, you

violated his right by injuring him;
The 4 elements are present. So there is a cause of action. In other

words, you cannot imagine a civil case where the 4 elements are
not present.
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) unless he
loses the right to make use of the period (Art. 1198, Civil Code).
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.
71

Action distinguished from Cause of Action
damaged cargoes, the consignee filed a case against the

carrier. Actually, in the bill of lading, there is a stipulation that
if the consignee wants to file a case arising from the contract
of carriage against the carrier, the consignee must first send a
notice of loss to the carrier and then if the carrier will not
honor it, that is the time the consignee can file a case before
the court. Now, he went to court directly without filing a
notice of loss to the carrier.
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, R 2).
CAUSE OF ACTION vs. RIGHT OF ACTION
ISSUE: Whether or not there is a right of action.
Another important subject in procedure is distinguishing a cause of

action from a right of action.
HELD: There is NO right of action because the consignee did

not comply with the conditions precedent.
Q: Define right of action.

A: Right of action is the right of the plaintiff to bring an action and
to prosecute that action to final judgment. (Marquez vs. Varela, 92
Phil. 373)
The right of action does not arise until the performance of all
conditions precedent to the action. Performance or fulfillment
of all conditions precedent upon which a right of action
depends must be sufficiently alleged, considering that the
burden of proof to show that a party has a right of action is
upon the person initiating the suit.
It is the right of a person to commence and prosecute an action to

obtain the relief sought.
Q: What are the ELEMENTS of a right of action?
More particularly, where the contract of shipment contains a

reasonable requirement of giving notice of loss of or injury to
the goods, the giving of such notice is a condition precedent
to the action for loss or injury or the right to enforce the
carriers liability.
A: There are three elements:

1.)
2.)
3.)
the plaintiff must have a good cause of action;

must be instituted by the proper party; and,
he/she must have performed all conditions
precedent to the filing of the action.
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF

ACTION.
So, you cannot have a right of action unless you first have a cause
of action. That is why the SC said in the case of

1)
DE GUZMAN, JR. vs. CA 192 SCRA 507

HELD: The right of action springs from the cause of action,
but does not accrue until all the facts which constitute the
cause of action have occurred. When there is an invasion of
primary rights, then and not until then does the adjective or
remedial law become operative, and under it arise rights of
action. There can be no right of action until there has been a
wrong a violation of a legal right and it is then given by the
adjective law.
Cause of action is the delict or wrong committed by the

defendant, whereas
Right of action refers to the right of the plaintiff to
institute the action;
2)
Cause of action is created by substantive law (e.g. rights

under the Civil Code), whereas
Right of action is regulated by procedural law; Right of
action is a remedial right belonging to some persons,
while cause of action is a formal statement of the
operative facts that give rise to such remedial right. (De
Guzman vs. CA, supra)
So, there can be no right of action until there has been a wrong, a
violation of a legal right. There can be no right of action unless
there is first a cause of action.
3)
And you must comply with the conditions precedent. You cannot
file a case unless you comply with certain conditions and the best
illustration of this element is the case of
Right of action may be taken away by the running of the

statute of limitations, by estoppel or other circumstances
which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His
failure to pay is the cause of action. After 10 years, the right to
collect has prescribed and you cannot recover anything. Actually,
what is barred is his right of action, not the cause of action because
the moment he does not pay, there is already a wrong and you
cannot erase a wrong. The cause of action is not affected by
prescription. In fact, the Civil Code provides that the obligation is
PHILAM GENERAL INSURANCE CO. vs. SWEETLINES - 212 SCRA 194
FACTS: This involves shipped cargoes from Manila to Davao

but the goods were damaged while in transit. Based on the
72

converted into natural obligation, which is based on equity rather

than a right.
only one case to recover the principal and the interest as well as
the attorneys fees.
When we say that the action has prescribed we should mean that
what has prescribed is the right of action not the cause of action.
EXAMPLE: Damage (injury) suit: X, while walking was bumped by a

vehicle. He filed one case against the owner of the vehicle for
reimbursement of hospital expenses; one case to recover his
expenses for medicine; another one for doctors fees; then another
case for the lost income.
Relief, Remedy and Subject Matter

Relief is the redress, protection, award or coercive measure which
the plaintiff prays the court to render in his favor as consequence
of the delict committed by the defendant while remedy is the
procedure or appropriate legal form of relief of action which may
be availed of by the plaintiff as the means to obtain the desired
relief.
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 plaintiff 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. This is because there is
one act of violation. 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.
Subject matter is the thing, wrongful act, contract or property

which is directly involved in the action, concerning which the wrong
has been done and with respect to which the controversy has
arisen.
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. - A
party may not institute more than one suit
for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Purpose:
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. What is involved in an ejectment
case is possession de facto or material possession. In an action for
reconveyance, the issue is ownership. (Tecson v. Gutierez, 452
SCRA 781; de la Cruz v. CA, 133 SCRA 520).
To avoid the following:

1)
2)
3)
Multiplicity of suits;
Conflicting decisions; and
Unnecessary vexation and harassment of defendants.
Application of the rule against splitting a single cause of action

This applies not only to complaints but also to counterclaims and
cross-claims.
This rule applies not only to complaints but also to counterclaims

and cross-claims. (Mariscal v. CA, 311 SCRA 51)
Q: What is splitting a single cause of action?

Example: 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 to the
plaintiff:
A: Splitting a cause of action is the act of instituting two or more

suits for the same cause of action.
It is the practice of dividing one cause of action into different parts
and making each part a subject of a different complaint. (Bachrach
vs. Icarigal, 68 Phil. 287)
a)
b)
In splitting a cause of action, the pleader divides a single cause of

action, claim or demand into two or more parts, brings a suit for
one of such parts with the intent to reserve the rest for another
separate action. (Quadra v. CA 497 SCRA 221)
EXAMPLE: In a suit under a promissory note, you file a case to
collect the principal; another action to collect the interest; another
action to collect attorneys fees. So, there is only one note and you
sue me three times but there is only one cause of action. Now,
under the law, you have split your cause of action. You should file
recovery of possession, and

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.
Now if the defendant denies plaintiffs allegations and avers that

the action is just plain harassment and claims for damages,
73

attorneys fees and litigation" expenses, he cannot file 3

counterclaims.
1.)
The filing of one is available as a ground for the dismissal

of the other. This assumes a situation where there is
already another action pending between the same parties
for the same cause. This is one ground for dismissal of a
case, LITIS PENDENTIA. (Rule 16 Motion to Dismiss,
Section 1 [e])
2.)
a judgment upon the merits in any one is available as a

ground for the dismissal of the others. This refers to a
judgment that is final and executor. That is what you call
barred by prior judgment or RES ADJUDICATA, which is
also a ground for dismissal under Rule 16, Section 1 [f].
The 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. vs. CA 301 SCRA 637).
The same principle applies to an action to recover the possession of
a land. The action must also include the recovery of the fruits
already taken from the land and appropriated by the defendant. A
suit for 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.
EXAMPLE: A collection case was already decided a long time ago

dismissing it because the court found that the promissory note was
a forgery. Now, you are reviving the same case you are filing
again. Under Section 4, the judgment in the first case years ago
would be cited as a basis for the dismissal of the second case.
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 vs. Vda. De Barrameda 11 SCRA 376).
Note: if the ground is pendency of another action, the phraseology

of the rule (Sec. 4 R 2) no longer confines 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.
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 vs. San Miguel
Brewery, Inc. 29 SCRA 819).
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?

A: The singleness of a cause of action is determined by the
singleness of the delict or wrong committed by the defendant and
not by the number of remedies that the law grants the injured
party. Meaning, a single delict may give rise to two or more
possible remedies but it does not mean to say the injured party can
avail of all those remedies simultaneously or one after another.
(Bachrach vs. Icarigal, supra; David vs. De la Cruz, L-11656, April
18, 1958)
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
vs. CA 154 SCRA 446; Industrial Finance Corp. vs. Apostol 177 SCRA
521).
It has been held however, that an action to collect the amount of
the loan will not preclude a subsequent action for the rescission of
the mortgage based on violation of the conditions of the mortgage
(Enriquez vs. Ramos 7 SCRA 26).
EXAMPLE: Obligations and Contracts: A violation or a breach of

contract could give rise to a civil action for specific performance or
a civil action for rescission of contract. However, it does not mean
to say that the injured party can file both or one after the other.
Otherwise, he will be splitting his cause of action.
Sec. 4. Splitting a single cause of action; effect

of. - If two or more suits are instituted on the
basis of the same cause of action, the filing of
one or a judgment upon the merits in any
one is available as a ground for the dismissal
of the others. (4a)
EXAMPLE: There is the Recto Law (on Sales) which provides for 3
remedies of an unpaid seller of personal properties: (1) rescind the
contract of sale; (2) exact fulfillment of obligation; and (3)
foreclosure of mortgage. But even the law on Sales is very clear:
the choice of one automatically bars resort to the other because it
will be against splitting the cause of action.
The remedy of the defendant is a motion to dismiss or if such

motion is not filed, to allege it in the answer as an affirmative
defense.
EXAMPLE: Credit Transactions: A bank has two (2) possible

remedies against a debtor for non-payment of a loan secured by a
mortgaged say, piece of land: (1) foreclose the mortgage on the
land; or (2) file an action to collect the loan. Here, the bank cannot
Q: What are the effects of splitting a cause of action?

A: Under Section 4, the following are the effects:
74

file a case against the debtor to collect the loan and at the same
time file an action to foreclose the mortgage for it will be splitting
the cause of action. So it is either you enforce the principal contract
of loan, or, you enforce the accessory contract of mortgage. This is
what happened in the case of
violations. (Larena vs. Villanueva, 53

Phil. 923)
EXAMPLE: A loan with a promissory note where the principal
amount is payable in installment. The first installment is payable in
2008, the second installment in this year, and the third installment
is payable in 2010 without any acceleration clause. So, there is only
one contract of loan but the principal is payable in three
installments at different times.
DANAO vs. CA 154 SCRA 446

FACTS: The Danao spouses borrowed money from the bank,
mortgaged their property and then they failed to pay. The
bank filed a civil action to collect the loan. After filing a civil
action to collect the loan, the bank instituted an action to
foreclose the mortgage.
For non- payment of the first installment, the creditor has a cause
of action and can file one case.
Q: Next year, he did not pay the second installment, can the
creditor file another case?
HELD: Anent real properties in particular, the Court has laid

down the rule that a mortgage creditor may institute against
the mortgage debtor either a personal action for debt or a
real action to foreclose the mortgage. In other words, he may
pursue either of the two remedies, but not both.
A: YES, because this time it is the exception. Every installment is

one cause of action even if there is only one note. Remember that
they are to be performed at different times.
RULE #3 (Exception to the exception):
Evidently, the prior recourse of the creditor bank in filing a

civil action against the Danao spouses and subsequently
resorting to the complaint of foreclosure proceedings, are not
only a demonstration of the prohibited splitting up of a cause
of action but also of the resulting vexation and oppression to
the debtor.
All obligations which have matured

at the time of the suit must be
integrated as one cause of action in
one complaint, and those not so
included would be barred. (Larena
vs. Villanueva, 53 Phil. 923)
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION

IN CONTRACTS WITH SEVERAL STIPULATIONS
EXAMPLE: In 2008, the debtor did not pay but the creditor did not
file any case. Then this year, the second installment was not also
paid.
RULE #1 (General Rule):
A contract embraces only one cause

of action because it may be violated
only once, even if it contains several
stipulations. (Quioque vs. Bautista,
L-13159, Feb. 28, 1962)
Q: Is the creditor correct if he files two separate actions?

A: He is wrong. When all the installment are already due and the
creditor has not filed any case for the collection of the first
installment, this time, when he files for collection of the unpaid
second installment, everything must be integrated. If you do not
file a claim for one, it is deemed barred.
EXAMPLE: P enters into a contract with N which contains 3

stipulations: (#1) that next month, P will deliver to N 100 sacks of
rice; (#2) on the same date, P will also deliver to N 100 sacks of
corn; and (#3) on the same date, P will also deliver to N 100 sacks
of sugar. When the day arrived, nothing was delivered. So three
stipulations were violated.
So for example, if you will wait for the entire note to mature, you
cannot apply rule 2. You should only file one action and you go
back to the general rule.
Doctrine of Anticipatory Breach
Q: How many causes of action does N have against P?

RULE #4 (Exception to Rule #2)
A: ONE. The contract is only one cause of action even if it contains
several stipulations. The cause of action is not based on the
number of paragraphs violated but on the contract itself.
An unqualified and positive refusal

to perform a contract, though the
performance thereof is not yet due,
may, if the renunciation goes into
the whole contract, be treated as a
complete breach which will entitle
the injured party to bring the action
at once. (Blossom & Co. vs. Manila
Gas Corp., 55 Phil. 226)
RULE #2 (Exception to the General Rule):

A contract which provides for
several stipulations to be performed
at different times gives rise to as
many causes of action as there are
75

EXAMPLE: Let us suppose that in the preceding problems when the

first installment fell due the creditor demanded payment for the
first installment from the debtor but the latter refused to pay
claiming that there was no loan and the promissory note is a
forgery how many causes of action are there?
THE PRINCIPLE: You cannot file more than one case when you have
only one cause of action but the law allows you to file one case for
more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one complaint for
the 2 promissory notes?
Now, in that kind of statement, he is not only repudiating the first

installment. He is repudiating the entire note. So under rule #4, the
creditor can file a case for the entire loan of because it has been
repudiated. If you only file only one for the first installment which
fell due, then another for the others, it will be useless because he
will still maintain the same position. So you do not wait anymore
for the 2nd and 3rd installments to fall due. You file only one case
for the entire breach. There is a total breach for a continuing
obligation and there is now only one cause of action for the entire
promissory note. (Blossoms & Co. v. Manila Gas Corporation, 55
Phil. 226) The anticipatory breach committed by the defendant
entitles the plaintiff to only one cause of action.
A: NO, because joinder of causes of action is permissive. He may or

may not.
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
action arose out of the same transaction or series of transactions.
This question is only relevant when there are multiple plaintiffs or
multiple defendants. In the hypothetical just discussed in the
example, is C obliged to join the causes of action against D?
No. 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.
JOINDER OF CAUSES OF ACTION

SEC. 5. Joinder of causes of action. - A party
may in one pleading assert, in the alternative
or otherwise, as many causes of action as he
may have against an opposing party, subject
to the following conditions:
ALTERNATIVE and CUMULATIVE Joinder of Causes of Action

Q: How may causes of action be joined?
A: Causes of action may be joined either: (a) alternatively or (b)
cumulatively.
xxxxx
An ALTERNATIVE JOINDER exists when your cause of action is

either one or the other. You are not seeking relief from both but
from either one.
Q: What do you mean by joinder of causes of action?

A: Joinder of causes of action is the provision of the Rules which
allows a party to join in one pleading two or more causes of actions
against the opposing party.
A CUMULATIVE JOINDER exists when you are seeking relief for all
your causes of action.
It is the assertion of as many causes of action as a party may have

against another in one pleading. It is the process of uniting two or
more demands or rights in one action.
ALTERNATIVE joinder; Example:
A is the importer of the goods that were shipped on board a

carrier. Upon reaching Cebu City, they were unloaded by the
arrastre or stevedoring operator. But when the goods were
delivered to A they were already in a damaged condition. A
complained to the arrastre which denied liability claiming that the
goods were damaged already before unloading. Then when A went
to the carrier, it passed the blame to the arrastre.
Example: D is the debtor of C for P350,000.00 due on January 5,

2008. D likewise owes C P350,000.00 due on February 13, 2008.
Both debts are evidenced by distinct promissory notes. D did not
pay both debts despite demand.
How many causes of action are there? There are two because there
are two contracts and therefore two violations. So C can file two
separate actions for collection without violating the prohibition
against splitting a single cause of action.
A here has two (2) possible causes of action: (1) an action against
the stevedoring operator under the contract of depositary under
the law on Credit Transaction; Or, (2) an action against the carrier
under the Law on Transportation. So there are 2 possible causes of
action.
But can C file only one action by joining the two causes of action?
Yes under this Section 5.
C may file a single suit against D for the collection of both debts,
despite the claims being actually separate causes of actions and
having arisen out of different transactions.
Q: Can A file a complaint incorporating the two (arrastre and the

carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because A is not
claiming from both of them, but either one or the other.
76

Another Example: C is a passenger riding on a public utility vehicle

which collided with another vehicle and she is not sure who is at
fault. If the fault lies with the other vehicle, and the driver of the
bus where C was riding is not at fault, then her cause of action
against the other vehicle is quasi-delict. But if the fault lies with the
driver of the bus where she was riding, her cause of action is culpa
contractual. So she has 2 possible causes of action.
of the causes of action falls within the jurisdiction of said

court and the venue lies therein; and
d)
a.) The party joining the causes of action shall comply with
the rules on joinder of parties
Q: Is it possible for C to file one complaint naming both the drivers

or both operators as defendants?
The rule on joinder of parties is Rule 3, Section 6 which provides

that two (2) or more persons can join as plaintiffs in one complaint
or can be joined as defendants in one complaint, provided there is
a common question of fact or law involved in that case. In other
words, before there can be a proper joinder of causes of action
there must must be a proper joinder of parties. Proper joinder of
parties requires that the right to relief should arise out of the
same transaction or series of transactions and that there exists a
common question of law or fact.
A: YES. Either of them is liable to her. That is alternative joinder of

causes of action.
CUMULATIVE JOINDER
Examples: Refer to prior illustrations
That is why the manner of joining the defendants alternatively or
otherwise should be correlated with Rule 3, Section 13 and Rule 8,
Section 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 of the same transaction or series of transactions as
stated beforehand. This question is only relevant when there are
multiple plaintiffs or multiple defendants. So in our hypothetical
case where D borrowed from C two separate amounts of
P350,000.00 each covered by two separate promissory notes, C can
opt to file one complaint joining together the two causes of action
arising from the violations of the promissory notes.
RULE 3, SEC. 13. Alternative defendants. Where the plaintiff is uncertain against who
of several persons he is entitled to relief, he
may join any or all of them as defendants in
the alternative, although a right to relief
against one may be inconsistent with a right
of relief against the other. (13a)
RULE 8, SEC. 2.
Alternative causes of
action or defenses. - A party may set forth
two or more statements of a claim or defense
alternatively or hypothetically, either in one
cause of action or defense or in separate
causes of action or defenses. When two or
more statements are made in the alternative
and one of them if made independently
would be sufficient, the pleading is not made
insufficient by the insufficiency of one or
more of the alternative statements. (2)
EXAMPLE: Two or more passengers riding on the same bus, met an

accident. All of them were injured. Every passenger who gets
injured has a cause of action separate and distinct from each other
because there are separate contracts of carriage violated. So they
decided to file a damage suit.
Q: Can they be joined in one complaint?
A: YES because there is a common question of fact or law. They are
riding on the same bus, meeting the same accident, against the
same operator. So there is a joinder of parties under Rule 3. And if
the joinder of parties under Rule 3 is proper, then their causes of
action can also be joined under Rule 2 because the condition is:
shall comply with the rules on joinder of parties.
Requisites for proper joinder of causes of action

Q: When is joinder of causes of action allowed?
Q: Suppose these passengers were riding on different buses owned

by the same operator. All of them met an accident. Well of course
the same kind of case: damage suit, breach of contract against the
same operator. Now, can their causes of action be joined?
A: Under Section 5, joinder of causes of action is allowed under the

following conditions:
a)
The party joining the causes of action shall comply with

the rules on joinder of parties;
b)
The joinder shall not include special civil actions or actions

governed by special rules;
c)
Where the causes of action are between the same parties

but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one
Where the claims in all the causes of action are principally

for recovery of money, the aggregate amount claimed
shall be the test of jurisdiction. (5a)
A: NO. They cannot be joined because there is no common

question of fact or law. The defense of the operator here is
different from his defense there. Meaning, passenger A has nothing
to do with the complaint of passenger B because there is no
common denominator between them. So if you cannot join them
under Rule 3, the joinder of causes of action under Rule 2 is also
improper.
77

Distinguish joinder of causes of actions from joinder of parties.
c.) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one of
the causes of action falls within the jurisdiction of said court
and the venue lies therein
Joinder of causes of action refers to the procedural device whereby

a party who asserts various claims against the same or several
parties, files all his claims against them in a single complaint. The
joinder will not involve a joinder of parties when the causes of
action joined accrued in favor of the same plaintiff against the
same defendant, i.e., there is only one plaintiff against the same
defendant. This means that a joinder of causes of action will not
necessarily involve a joinder of parties.
PROBLEM: M encroached on two parcels of land belonging to me

both located IN Cebu City. In one parcel of land, the assessed value
is only P20,000. In another parcel of land, the assessed value is P1
million. I would like to file a case of action publiciana against him.
The first accion publiciana is triable by the MTC (P20,000). The
other accion publiciana is triable by the RTC.
Joinder of parties is a procedural device that may be employed

when there are various causes of actions that accrue in favor of one
or more plaintiffs against one or more defendants, i.e., there is a
plurality of parties. A joinder of parties requires that before parties
can be joined under a single complaint the right to relief must arise
out of the same transaction or series of transactions and there
must be a common question of law or fact. A joinder of parties may
or may not be involved in a joinder of causes of action.
Q: Can I join them?

A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC
will prevail. Venue, of course, is Cebu City.
Examples of but pertain to different venues or jurisdiction
PROBLEM: M encroached on my land in Lapulapu with an assessed
value of P20,000. And then he encroached in another land of mine
in Cebu City with an assessed value of P1 million. You will notice
that in the Lapulapu land, the jurisdiction is in the MTC for the case
accion publiciana and the venue is Lapulapu because the property
is situated there. In the other case, the jurisdiction is in the RTC and
the venue is Cebu City.
b.) The joinder shall not include special civil actions or actions
governed by special rules
Assume that aside from the above claims of C against D, C who
happens to be the lessor of D wants to eject D from the apartment
occupied by D as lessee. May the action be joined with the claims
for money?
Q: Can I file a case against M joining the 2 cases?
No. An action for ejectment is a special action which cannot be

joined with ordinary action. The joinder does not include special
civil actions or those governed by special rules. The reason is
confusion in the application of procedural rules would certainly
arise from the joinder of ordinary and special civil actions in a single
complaint.
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be
filed in Cebu City.
Assume that C has the following causes of action against D: (a) P1M
based on a PN; (b) P1M based on torts; and (c) foreclosure of real
estate mortgage. May the causes of action be joined?

value of P1 million. And then he encroached in another land of
mine in Cebu City with an assessed value of P1 million also. You will
notice that in the Lapulapu land, the jurisdiction is RTC for the case
accion publiciana. In the other case, the jurisdiction is also in the
RTC of Cebu City. So both actions, RTC.
Yes, except the foreclosure of real estate mortgage, which is a

special civil action.
UNION GLASS AND CONTAINER CORP vs. SEC - 126 SCRA 31
Q: In which RTC will you file the case joining the causes of action?
FACTS: (This is still a good ruling) A stockholder of a
corporation who is also the creditor of the corporation
decided to file one complaint against the corporation
asserting several causes of action, among them is his right as a
stockholder under the Corporation Code and also his right as a
creditor under the Civil Code.
A: Either Lapulapu or Cebu City because both are RTCs.

value of P20,000. And then he encroached in another land of mine
in Cebu City with an assessed value of P20,000 also. In the Lapulapu
land, the jurisdiction is MTC for the case accion publiciana. In the
other case, the jurisdiction is also in the MTC. So both actions,
MTC.
HELD: The joinder is improper. In the first place, one is

governed by a quasi-judicial body (SEC). So how can the RTC
try a case when the cause of action is pertaining to the SEC
and it is governed by the special rules of the SEC? So you
cannot join that.
Q: Can I join in one complaint the 2 actions?
78

A: NO, because the law says provided one of the causes of action
falls within the jurisdiction of said court and the venue lies therein.
One of them belongs to the RTC. In the example, both belong to
the MTC.
of action may, on motion of a party or on the

initiative of the court, be severed and
proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action were
joined in one complaint when they should no be joined.
PROBLEM: M encroached on my land more than one year ago and

the land has an assessed value of only P20,000. So if I will file an
accion publiciana, it has to be filed with the MTC. On the other
hand, A encroached my other parcel of land more than one year
ago and the assessed value of the land is P1 million. So my cause of
action there is also accion publiciana but triable by the RTC. So I
decided to file a case naming both of them as defendants.
EXAMPLE: A case joining an accion publiciana case and a forcible

entry case which is not proper because a special civil action
(forcible entry) cannot be joined. In this case there is misjoinder of
causes of action.
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.
Q: Can they be joined under Section 5?

A: NO. The law allows only if it is between the same parties. This
time the parties are not the same. Plus the fact that you might
violate paragraph [a] there is no common question of fact and
law between them.
Under Section 6, if there is misjoinder, you do not dismiss the case.

The remedy is to ask the court that the misjoined case be severed
and tried separately. Now, the counterpart, which is still present is
misjoinder of parties under Rule 3, Section 11:
PROBLEM: M encroached on my land in Cebu City one month ago

and then he encroached on another land of mine (assessed value of
P1 million) also located in Cebu City two years ago. Therefore, one
case is forcible entry triable by the MTC and the latter is accion
publiciana triable by the RTC.
RULE 3, Sec. 11. Misjoinder and non-joinder of

parties. - Neither misjoinder nor non-joinder
of parties ground for dismissal of an action.
Parties may be dropped or added by order of
the court on motion of any party or on its
own initiative at any stage of the action and
on such terms as are just. A claim against a
misjoined party may be severed and
proceeded with separately. (11a)
Q: Can I join them under paragraph [c] although they belong to

MTC and RTC?
A: NO, you cannot join them because of paragraph [b] a forcible
entry is special civil action which is also governed by the Summary
Procedure. You cannot join a special civil action. So what is violated
here is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are principally for
recovery of money, the aggregate amount claimed shall be the
test of jurisdiction
So misjoinder of parties and misjoinder of causes of action are not

grounds for dismissal of an action. Just remove the misjoined cause
of action or the misjoined party.
The last is only a repetition of the old rule: TOTALITY RULE. There is
nothing new here. So judiciary law, totality rule, basta sums of
money.
As can be gleaned from Sec. 6(a) and (c) of the Truth in Lending Act,
the violation of the said Act gives rise to both criminal and civil
liabilities. Rule 2, Section 5 of the Rules of Court allows these
actions to be joined in one petition. (UCPB vs. Sps. Samuel and
Odette Beluso, GR No. 159912, Aug. 17, 2007).
Splitting a cause of action and joinder of causes of action
Splitting is prohibited because it causes multiplicity of suits and
double vexation on the part of the defendant while joinder is
encouraged because it minimizes multiplicity of suits and
inceonvenience on the part of the parties.
SEC. 6. Misjoinder of causes of action. Misjoinder of causes of action is not a ground
for dismissal of an action. A misjoined cause
79

Rule 03
So, you cannot sue or be sued unless you are either a person or an
entity authorized by law.
PARTIES TO CIVIL ACTIONS

A dead man cannot sue and he cannot be sued because he has no
more personality.
CLASSES OF PARTIES:
I.
II.
III.
IV.
V.
Real Parties in Interest

Representative Parties
Permissive Parties
Indispensable Parties
Necessary Parties
Situation: B sued Rama Eatery. So, it is B vs. Rama Eatery. It is

wrong. Rama Eatery is not a person nor an entity authorized by
law. The correct procedure is you sue the owner because he is the
real person. But the defect is not really substantial. It is only a
formal defect that can easily be corrected.
Sec. 1. Who may be parties; plaintiff and

defendant. - Only natural or juridical persons,
or entities authorized by law may be parties
in a civil action. The term "plaintiff" may
refer to the original claiming party, the
counter-claimant, the cross-claimant, or the
third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original
defending party, the defendant in a
counterclaim, the cross-defendant, or other
third (fourth, etc.)-party defendant. (1a)
Juridical person as parties

The juridical persons who may be parties are those enumerated in
Art. 44 of the Civil Code, namely:
1.)
2.)
3.)
The State and its political subdivisions;

Other corporations, institutions and entities for public
interest or purpose, created by law; and
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.
Notes:
ENTITIES AUTHORIZED BY LAW
There are two main categories of parties in a civil action

namely, the plaintiff and the defendant.
The best example is Section 15 of this rule.

Section 15. Entity without juridical personality
as defendant.- When two or more persons
not organized as an entity with juridical
personality enter into a transaction, they may
be sued under the name by which they are
generally or commonly known.
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 third party
complaint. Hence Section 1 defines plaintiff as the
claiming party, the counter-claimant, the cross-claimant
or the third-party plaintiff, etc.
In the answer of such defendant the names

and addresses of the persons composing said
entity must all be revealed.
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. Hence, in Sec. 1,
the term defendant refers also to a defendant in a
counterclaim, the cross-defendant or the third-party
defendant, etc.
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 Corporation, they may be sued
as such. 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.
Q: Who may be parties to a civil case?

A: Only the following may be parties to a civil action:
1)
He nuts be either:
a.
natural or
b.
juridical persons or
c. entities authorized by law.
2)
3)
he must have the legal capacity to sue; and

he must be a real party-in-interest.
Another example of an entity authorized by law which may not be

a natural or juridical person is a labor union or organization under
the Labor Code. It is an entity authorized by law to file a case in
behalf of its members. Although it may not have been incorporated
under the Corporation Law but registered under the Labor Code. A
legitimate labor organization may sue and be sued in its registered
name (Art. 242 [e], Labor Code of the Philippines).
80

What are the others?

1)
An estate of a deceased person may be a party to an

action. (Limjoco v. Intestate Estate of Fragante, 8 Phil.
776; Nazareno v. CA 343 SCRA 637)
2)
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;
Verzosa v. Fernandez 49 Phil. 627)
3)
Q: Who is a real party in interest?

A: 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. (Section 2)
A dissolved corporation may prosecute and defend suits

by or against it provided that the suits occur within 3
years after its dissolution, and the suits are in connection
with the settlement and closure of its affairs. (Sec. 122,
Corporation Code)
4)
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.
5)
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 Civil Code).
6)
suit. Unless otherwise authorized by law or

these Rules, every action must be prosecuted
or defended in the name of the real party in
interest. (2a)
That definition is taken from the leading case of SALONGA VS.

WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is
defined and that definition has been repeated through the years.
To be a real party- in- interest, the interest must be real, which is
present substantial interest as distinguished from a mere
expectancy or a future, contingent, subordinate or consequential
interest. (Rayo v. Metrobank, 539 SCRA 571; Fortich v. Corona 289
SCRA 624; Figuracion v. Libi 539 SCRA 50. It is an interest that is
material and direct, as distinguished from a mere incidental
interest in the question. (Samaniego v. Aguila 334 SCRA 438; Mayor
Rhustom Dagadag v. Tongnawa 450 SCRA 437).
The determination of who the real party-in-interest is requires
going back to the elements of a cause of action. 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.(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, 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)
A political party incorporated under Act 1459 (now BP

68, Corporation Code)
Remedy when a party impleaded is not authorized to be a partyAs to plaintiff:

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. 1[d] R 16)
When plaintiff is not the real party in interest:
every action must be prosecuted or defended in the name of the

real party in interest
Also, if the plaintiff 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 (Aguila vs. CA 319 SCRA 246; Balagtas vs. CA 317 SCRA 69)
not lack of legal capacity to sue.
So a complaint is dismissible if it is not made in the name of the

real party in interest.
In an action to recover ownership over or title to a piece of land ,
you do not file a case against the tenant. He is not the real party in
interest. You must file the case against the owner of the land.
As to defendant:
Where it is the defendant who is not any of the above, 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. 1[g], R 16) because there cannot be a cause
of action against one who cannot be a party to a civil action.
Neither can your boyfriend file the case.

When you are riding in a common carrier which collided and you
were injured, do not file a case against the driver for damages. Your
contract is not with the driver. Your contract is with the operator.
So you file a case of culpa contractual against the owner or
operator.
I. REAL PARTIES IN INTEREST

Sec 2. Parties in interest. - A real party in
interest is the party who stands to be
benefited or injured by the judgment in the
suit, or the party entitled to the avails of the
GENERAL RULE: In a breach of contract, the real parties in interest

are the parties to the contract. So strangers, as a rule, have no
81

business suing in a contract because they are not real parties 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 attorney-in-fact (Carillo vs.
CA 503 SCRA 66).
BALIWAG TRANSIT vs. CA - 169 SCRA 649 [1989 BAR]

FACTS: A student who was riding in one of the Baliwag buses
met an accident. So, an action was filed where the parents
and the injured boy were the co-plaintiffs against Baliwag
Transit. While the case was going on, the boy entered into
amicable settlement with the bus company. Based on the
settlement, Baliwag moved to dismiss the case. The parents
objected, We are objecting because we are also plaintiffs.
We didnt know about the settlement. We were the ones who
spent money, therefore it should not be dismissed simply
because our son is withdrawing the case.
SALONGA vs. WARNER BARNES 88 Phil. 125 [Bar Problem]

FACTS: A decided to go abroad but she has properties in the
Philippines. So she executed a special power of attorney in
favor of K giving the latter full power to administer, to collect
all my money; to withdraw my money in the bank; with full
power to sue these people who owe me; with the authority to
hire a lawyer; and enter into a contract. Practically, you are
my alter ego. And then A went abroad.
HELD: The parents are not the real party in interest. They
were not the passengers. The real parties in a contract of
carriage are the parties to the contract itself. In the absence
of any contract of carriage between the transportation
company and the parents of the injured party, the parents are
not real parties in interest in an action for breach of contract.
K started to manage the property. One of the tenants failed to

pay rentals. So in accordance with the authority, he hired a
lawyer. In preparation of the complaint, it was stated in the
caption, K, plaintiff vs. L, defendant.
Of course, if the child is a minor the parents can file as

representatives but not as principal party.
HELD: NO. The real property in interest is the principal, the

owner of the property. K is only an attorney-in-fact. An
attorney-in-fact cannot use in his own name because he is not
the real party in interest. K is given the authority to sue, to
manage, hire a lawyer but not as the plaintiff because the real
party in interest is A. The complaint should be captioned as
A, plaintiff vs. L, defendant.
ISSUE: Is the action properly filed?
EXCEPTION: When there is a stipulation in the contract favorable to

a third person (stipulation pour autrui Art. 1311, NCC)
Example: Third-Party Liability (TPL) in insurance. A insured his car
with B for TPL. A bumped C. C can file a case against A and B to
recover from the insurance contract. In other words, while only A
and B are the parties to the insurance contract yet the third party
liability stipulation is intended to benefit a third party who may be
damaged by A while driving his car.
Q: Suppose the caption will read: K, as attorney-in-fact of A,

plaintiff vs. L, defendant is the complaint properly filed?
A: NO. This is even worse because K is admitting that he is only an
attorney-in-fact so it becomes more obvious that he is not the real
party in interest. If K wants to include his name, it should read: A,
plaintiff, represented by K, his attorney-in-fact vs. L, defendant.
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. Thus, Article 1313 of
the Civil Code provides that creditors are protected in cases of
contracts intended to defraud them. Further, Article 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.
Q: Does the law require A to come here to file the case?

A: NO. Take note that the law does not require the principal (A) to
come back to file the case because the plaintiff can invoke the
jurisdiction of the court by filing the complaint and paying the
docket fee.
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 (Phil. Trust
Company vs. CA 320 SCRA 719).
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 vs. CA 314 SCRA 69). 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
Suits for corporations:

When the corporate offices have been illegally searched, the
corporate officer is not the real party in interest to question the
search. The right to contest the transgression belongs to the
82

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 vs. Diokno 20 SCRA 383).
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where the

action is allowed to be prosecuted or
defended by a representative or someone
acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and
shall be deemed to be the real party in
interest. A representative may be a trustee
of an express trust, a guardian, an executor
or administrator, or a party authorized by law
or these Rules. An agent acting in his own
name and for the benefit of an undisclosed
principal may sue or be sued without joining
the principal except when the contract
involves things belonging to the principal.
(3a)
Derivative suit:
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 vs. CA 300 SCRA 579)
Partnerships:
Under Art. 1768 of the Civil Code 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 for failure to state a cause of action (Aguila vs. CA 319
SCRA 345).
Section 3 is consistent with Section 2 because under Section 2, you

cannot sue and be sued if you are not the real party in interest.
Section 3 allows one who is not a real party in interest to sue and
be sued in behalf of somebody else but requires the beneficiary to
be named in the Complaint being the real party in interest.
Example: GUARDIAN. Suppose J, a minor was injured, a case for
damages can be filed in behalf of the minor. A minor cannot sue
and be sued but she is the real party in interest. The law allows the
parents to come in and also be the plaintiff. The parents are what
we the representative party. The law still requires for the minor to
be included in the case. The law states that the beneficiary shall
be included in the title of the case and shall be deemed to be the
real party in interest.
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 (Vlasons Enterprises vs. CA 310 SCRA 26).
In Oposa vs. Factoran GR No. 101083, 1993, minors represented by

their parents were held as real parties in interest to file an action to
annul timber license agreements issued by the state under the
following principles:
Rule on standing as distinguished from the concept or real

party-in-interest
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 party-in-interest rule found in Section 2 Rule 3 of the Rules
of Court which provides that every action must be prosecuted or
defended in the name of the real party-in-interest(Baltazar vs.
Ombudsman GR No. 136433 December 6, 2006)
1.
2.
3.
4.
inter-generational responsibility;
inter-generational justice;
the right of the Filipinos to a balnced and healthful
ecology; and
minors repersent themselves and the generation to
come.
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example

is a trustee of an express trust, or executor or administrator of the
estate of a deceased person. When a person dies, what survives
after him is his estate which represents everything that is left
behind. This later on will be given to his heirs. But for the
meantime under the law on succession, the executor or
administrator will take charge of his property.
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 partyin-interest is involves only a question on whether a person would
be benefitted or injured by the judgment or whether or not he is
entitled to the avails of the suit (Kilosbayan Inc. vs. Morato 246
SCRA 540).
Q: If the estate of the deceased has some collectibles, who will file
the case?
83

A: The administrator or executor as the representative party. If you

want to sue the estate, you should sue the estate through the
administrator or executor.
Normally, the husband and the wife should sue and be sued
together. Even if the wife borrowed money alone and you want to
sue the woman, still the husband should be included. Why? In the
property relationship between the husband and wife, they are
governed by absolute community or conjugal partnership. Whether
you like it or not, the implication of the wife is also the implication
of the husband because of the property relationship.
CHING vs. CA 181 SCRA 9
FACTS: A wanted to sue D, who owes her a sum of money.

The problem is, she cannot locate Ds whereabouts. Also, A is
not certain whether D is dead or alive. So, to play it safe, what
A did was to file a case against the defendant and/or the
estate of defendant. A obtained a judgment against the
defendant and/or the estate of defendant.
In the same manner, if the wife wants to collect, even if the

husband does not know anything about it, the husband should still
be named as party plaintiff, on the ground again that the income
that she can get redounds to the benefit of the conjugal
partnership.
Later on when the judgment was enforced, it turned out that

D was already dead but he has properties left behind. So, they
started to take hold of his properties. Now, the heirs of D
challenged the decision.
And there were decided cases in the past where even if for
example, a wife sues without the husband, the defect is not fatal
but merely formal. The complaint should not be dismissed. All that
is to be done is to amend the complaint impleading the husband.
(Cuyugan vs. Dizon, 76 Phil. 80)
ISSUE: Whether or not there was a valid judgment against the

defendant/or the estate of the defendant.
Q: Give an exception to that general rule that husband and wife

shall sue or be sued jointly.
HELD: The decision is void. The decision of the lower court

insofar as the deceased is concerned, is void for lack of
jurisdiction over his person. He was not, and he could not
have been validly served with summons. He had no more civil
personality. His juridical personality, that is fitness to be
subject of legal relations, was lost through death (Arts. 37 and
42 Civil Code).
A: The EXCEPTIONS are:

1)
2)
in case of Complete Separation of Property (Article 145,

Family Code), and
under Article 111, Family Code:
Art. 111. A spouse of age may mortgage,
alienate, encumber or otherwise dispose of
his or her exclusive property without the
consent of the other spouse and appear
alone in court to litigate with regard to the
same. (Family Code)
The same conclusion would still inevitably be reached

notwithstanding joinder of Bs estate as co-defendant. It is a
well-settled rule that an estate can sue or be sued through an
executor or administrator in his representative capacity.
So, the Court cited Section 3. In order to bind the estate, you
should sue the executor or the administrator of his estate. So,
either way, the case cannot prosper.
3)
The last sentence of Section 3:

An agent acting in his own name and for the
benefit of an undisclosed principal may sue
or be sued without joining the principal
except when the contract involves things
belonging to the principal.
Another is when a spouse without just cause

abandons the other or fails to comply with his
or her obligations to the family with respect to
the marital, parental or property relations.
Sec 5. Minor or incompetent persons. - A

minor or a person alleged to be incompetent,
may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a
guardian ad litem. (5a)
The agent cannot sue because the principal is the real party in
interest. But when an agent acts in his own name and for the
benefit of an undisclosed principal, he may sue and be sued,
EXCEPT when the contract involves things belonging to the
principal. Under the exception, the principal has really to be
included. The agent cannot file a case where the principal will lose
his property without being named as part to the case.
Section 5 is related to Section 3. The minor or incompetent person

must be assisted by the parents and considered as representative
party. Incompetent persons include insane people or mentally
retarded people. They are supposed to be under the custody of
other persons, the guardians. If no guardian, the court has to
appoint a guardian called the guardian ad litem.
Sec 4. Spouses as parties. - Husband and wife

shall sue or be sued jointly, except as
provided by law. (4a)
A person need not be judicially declared incompetent it being

sufficient that his incompetency be alleged in the corresponding
pleading.
84

III. PERMISSIVE PARTY
It would be different if the passengers were riding on different

buses belonging to the same company, and all of them met an
accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is no
common denominator no common question of fact. Therefore,
they cannot be joined.
Sec 6. Permissive joinder of parties. - All

persons in whom or against whom any right
to relief in respect to or arising out of the
same transaction or series of transactions is
alleged to exist, whether jointly, severally, or
in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or
be joined as defendants in one complaint,
where any question of law or fact common to
all such plaintiffs or to all such defendants
may arise in the action; but the court may
make such orders as may be just to prevent
any plaintiff or defendant from being
embarrassed or put to expense in connection
with any proceedings in which he may have
no interest. (6)
PROBLEM: Suppose a story appeared in the Inquirer where 5

people were called as jueteng kings. They were allegedly involved
in jueteng. Now, the five of them want to sue the Inquirer for
damages arising from libel. Is it possible for the five (5) people
named in the article to file only one complaint against the editor
and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the
same story. It is not a different issue. So there is a common
question of fact and law in their cause of action.
PROBLEM: M, while driving a car, bumped another vehicle, injuring
the driver and causing injury to other passengers. So, there are
three offended parties : the owner of the vehicle, the driver of the
vehicle , and the passenger. There are three(3) causes of action.
Can they join in one complaint against Myra, the owner of the car
which bumped them?
Section 6 is known as permissive joinder of parties. This is related

to Section 5 [a] of Rule 2 on joinder of causes of action.
Q: May two or more persons join in one complaint as plaintiffs? Or
can two or more persons be joined together as defendants?
A: YES, under two conditions, to wit:
1.)
2.)
A: YES because there is a common question of fact and law. There

is only one accident.
There is a right to relief in favor of or against the

parties joined in respect to or arising out of the
same transaction or series of transactions; and
Q: But suppose the three of them will file 3 separate cases against
M, can it be done?
There is a question of law or fact common to the

parties joined in the action.
A: yes, because it is a permissive joinder of parties, not mandatory.

Q: Why does the law encourage joinder of parties?
An additional condition is that the such joinder is not otherwise

proscribed by the provision of the rules on jurisdiction and venue.
A: The following are the reasons:
Series of Transactions
1)
2)
3)
4)
This pertains to transactions connected with the same subject

matter of the suit.
PROBLEM: Suppose some passengers riding a particular common
carrier are injured because of an accident. All of them want to sue
the operator of the carrier for damages arising out of the breach of
contract of carriage. Under the Law on Transportation, it is possible
for each passenger to file his own case because their causes of
action are different from each other. But can they be joined
together in one complaint against the common carrier?
to promote convenience in trial;

to prevent multiplicity of suits;
to expedite the termination of the litigation; and
to attain economy of procedure under which several demands
arising out of the same occurrence may be tried together thus
avoiding the repetition of evidence relating to facts common
to the general demands.
Now, take note that when there is joinder of parties, there is

automatically a joinder of causes of action. That is why one of the
conditions or limitations in joinder of causes of action is you must
observe the rule on joinder of parties. If joinder of parties is
improper under Rule 3, the joinder of causes of action is also
proper under Rule 2, Section 5
A: YES because there is a common question of law or fact in the

causes of actions of the injured passengers: the evidence is
identical; the issues whether the carrier is at fault are the came;
the witnesses for both parties will be the same; the report will be
the same; the defense of the operator against one party will be
the same defense as against the other passenger. So, since there is
a common denominator on their causes of action, they can be
joined.
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A

JOINDER OF CAUSES OF ACTION. BUT THERE CAN BE A JOINDER
OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
EXAMPLE: When there is only one plaintiff and one defendant:
Suppose Melissa will secure three (3) loans from me.
85

Q: How many causes of action do I have if M will not pay me?
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.
A: Three
Q: Now, can I join them in one complaint?
Compulsory joinder of indispensable parties
A: Yes.
Although normally, a joinder of parties is permissive (Sec. 6 Rule 3),

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).
Q: Is there joinder of causes of action?

A: Yes.
Q: Is there joinder of parties?
The presence of all indispensable parties is a condition sine qua

non for the existence 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 their absent parties but
even as to those present. One who is not a party to a case is not
bound by the decision of the court; otherwise, he will be deprived
of his right to due process (Sepulveda, Sr. vs. Pelaez 450 SCRA 302).
A: NONE, because there is only one plaintiff and one defendant.

So, there can be joinder of causes of action without joinder of
parties because there is only one plaintiff and one defendant. But if
you join parties in Rule 3, automatically, there is joinder of causes
of action. This is the relationship of these two provisions.
Finally, the last two types of parties to the action are the so-called
indispensable parties and necessary parties. (Section 7 and Section
8, respectively)
Dismissal for failure to implead an indispensable party

INDISPENSABLE PARTY and NECESSARY PARTIES
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 vs. CA 297 SCRA 287).
Sec. 7. Compulsory joinder of indispensable

parties. Parties in interest without whom no
final determination can be had of an action
shall be joined either as plaintiffs or
defendants. (7)
Sec. 8. Necessary party. A necessary party is
one who is not indispensable but who ought
to be joined as a party if complete relief is to
be accorded as to those already parties, or
for a complete determination or settlement
of the claim subject of the action. (8a)
Need of an order to implead an indispensable party

It is noteworthy that the Court in its rulings did not hold that the
failure to join an indispensable party results in the outright
dismissal of the action. An outright dismissal is not the immediate
remedy authorized by the Rules because under the Rules a nonjoinder (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). 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; Plasabas vs. CA GR No. 166519,
March 31, 2009). (See also Pamplona Plantation Co. vs. Tinghil
450 SCRA 421).
Notes:
An indispensable party is a real party in interest without
whom no final determination can be had of an action.
(Sec. 7) Without the presence of this party, the judgment
cannot attain real finality. (Servicewide Specialists, Inc.
v. CA 318 SCRA 493; De Castro v. CA 384 SCRA 607)
(See also Lucman vs. Malawi GR No. 159794 December 19, 2006)
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 indispensable party that his presence will avoid
Effect of absence of indispensable party

In a relatively recent case, the Court held 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
86

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 vs. CA 494
SCRA 535).
mortgagee, the second mortgagee is merely a necessary party.

(Somes vs. Govt of Phil., 62 Phil. 432)
Q: Distinguish indispensable from necessary party.
PROBLEM: In credit transactions, there is a creditor, debtor and

surety. Debtor borrowed money from the creditor, then another
acted as the surety. Now, suppose the debtor will not pay, the
creditor files now a case against the surety without the debtor. The
debtor was not included in the case.
REVIEW: What is the difference between a surety and a guarantor?

The liability of guarantor to the creditor is only secondary.
Meaning, the guarantor is only liable to the creditor if the principal
debtor cannot pay like when the debtor is insolvent. On the other
hand, a surety is principally liable to the creditor whether or not
the debtor can pay.
A: An INDISPENSABLE PARTY must be joined under any and all

conditions, his presence being a sine qua non of the exercise of
judicial power, for without him, no final determination can be had
of the action. (Borlasa vs. Polistico, 47 Phil. 345) Stated otherwise,
an indispensable party must be joined because the court cannot
proceed without him. Hence, his presence is mandatory.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
A NECESSARY PARTY ought to be joined whenever possible in

order to adjudicate the whole controversy and avoid multiplicity
of suits, but if for some reason or another he cannot be joined, the
court may proceed without him and the judgment shall not
prejudice his rights. (Ibid.) His presence 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.
Now, the surety may be ordered to pay who can sue the principal
debtor for reimbursement. Meaning, there is still a future case.
Thus, there could be no complete relief between those who are
parties. So, the debtor is a necessary party, and not indispensable.
But it is advisable to join the debtor in one case, so that when the
creditor claims from the surety, the latter can automatically claim
from the debtor. Multiplicity of suits is then, avoided.
A and B are the signatories in a PN which reads: We promise to
pay to the order of C P1M on February 27, 2009. On due date the
debtors failed to pay.
Q: Give examples of indispensable party.

A: In an action for partition of land, all the co-owners thereof are
indispensable parties. (De Lara vs. De Lara, 2 Phil. 294) In an action
for annulment of partition, all of the heirs must be made parties.
(Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership
of land, the person who claims to be the owner of the land is the
indispensable party defendant and not the one in possession as
tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96
Phil. 938)
(a)
May C sue A alone?
Yes. 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 CC). Being
debtors in a joint obligation, the debtors then are liable
separately for P500,000.00 each.
Joint debtor
He is an indispensable party in a suit against him but a necessary
party in a suit against his co-debtor.
(b) Is A in a suit against him by C a necessary or an

indispensable party? He is an indispensable party.
Without him being impleaded as defendant, C cannot
collect the P500,000.00 share of A. Without A there
cannot be a final determination of the case against him.
Solidary debtor
In a suit brought by a creditor against one solidary debtor, the
other solidary debtor is neither indispensable nor a necessary
party.
(c)
Q: Give examples of necessary party.

A: In an action for collection of debt instituted by the creditor
against the surety, the principal debtor is merely a necessary party.
(Vao vs. Alo, 95 Phil. 495) In an action for recovery of debt
instituted by the creditor against the debtor, the guarantor or
surety is merely a necessary property. (Ibid.) In an action for
foreclosure of a real estate mortgage instituted by the first
In the suit by C against A is B a necessary or an

indispensable party? B is not an indispensable party. C
can collect from A P500,000.00 without impleading B. He
is only a necessary party. Without B being made a party
to the action, C cannot have a complete relief, i.e., he
cannot collect his entire credit of P1M. If he desires a
complete recovery, B must be impleaded.
(3) In the above example, assuming that the debtors bound

themselves to pay the P1M solidarily, would B an indispensable or
87

necessary party to a suit by C against A? He 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 P1M. 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.
PROBLEM: M and C are SOLIDARY debtors of P100,000 (50-50

sharing). D is the creditor. Both did not pay D.
Q: If D files a case against M only, can the case proceed without C?
A: YES and M is required to pay D the whole amount of the debt
because of solidary obligation. Then M can proceed against C for
reimbursement. Be is merely necessary party.
Solidarity does not make a solidary debtor an indispensable party in

a suit filed by the creditor against another solidary debtor.
(Republic v. Sandiganbayan 173 SCRA 72; Operators Inc. v.
American Biscuit Company 154 SCRA 738)
Sec. 9. Non-joinder of necessary parties to be

pleaded. Whenever in any pleading in which a
claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if
known, and shall state why he is omitted.
Should the court find the reason for the
omission unmeritorious, it may order the
inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
(4) 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 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 or replevin suit? He cannot. B
must be made 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.
The failure to comply with the order for his

inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such
party.
The non-inclusion of a necessary party does
not prevent the court from proceeding in the
action, and the judgment rendered therein
shall be without prejudice to the rights of
such necessary party. (8a, 9a)
PROBLEM: K borrowed money from D. A is the guarantor. D filed a

case against K. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Duty of Pleader When a Necessary Party is not joined

A: YES because the guarantor is merely a necessary party. And if
the debtor turns out to be insolvent, the creditor will now file
another case against the guarantor.
While a necessary party is not indispensable to the final

determination of the action, said party ought to be joined
whenever possible. If a pleader has no intent to implead a
necessary party, the pleader is under obligation to: (a) set forth the
name of said necessary party, if known, and (b) state the reason
why the necessary party is omitted. A reason justifying the nonjoinder of a necessary party is when said party is outside the
REVIEW: What is the difference between joint debtors and solidary

debtors? In solidary, the creditor can collect the whole obligation
from any of the debtors without prejudice to the right of the latter
for reimbursement of his share in the obligation from his codebtors. On the other hand, in joint obligation, the creditor can
only get from a debtor the latters share in the whole obligation.
Meaning, the creditor cannot compel the debtor to pay the share
of his co-debtor. Kanya-kanya tayo.
Effect of justified failure to implead a necessary party

Assuming that a necessary party cannot be impleaded, his
non-inclusion does not prevent the court from proceeding with the
action. The judgment rendered shall be without prejudice to the
rights of such necessary party.
PROBLEM: M and C are JOINT debtors of P100,000 (50-50 sharing).

D is the creditor. Both did not pay D.
Q: If D files a case against M only, can the case proceed without C?
When court may order joinder of a necessary party and effect of

failure to comply
A: YES but D can only collect from M up to P50,000 because of their

joint obligation. C is only necessary insofar as Ms share is concern.
But M is indispensable party insofar as his share is concern.
However, if the court finds no valid reason for not impleading a

party, the court may order the inclusion of the necessary party
under Section 9. And take note that under the new rules, the
failure to comply with the order of inclusion without justifiable
cause shall be deemed a waiver of the claim against such
(necessary) party.
Q: But if D wants to collect the entire P100,000, what should she

do?
A: She should file a case against both M and C.
88

Sec. 10. Unwilling co-plaintiff. If the consent

of any party who should be joined as plaintiff
cannot be obtained, he may be made a
defendant and the reason therefor shall be
stated in the complaint. (10)
A: The remedy is to order the removal of the party who is

misjoined, or to order the inclusion of the party who should be
joined. And that is not a defect which should cause the dismissal of
the case because the court can always issue an order ordering the
removal of a misjoined party or the inclusion of joinder of a party
who should be included.
This is particularly true with INDISPENSABLE parties because the

case cannot proceed without him/her.
Effect of failure to obey order of the court to add or drop a party
EXAMPLE: There are 4 brothers and 1 sister. They have to file a

case against somebody to recover property which they believe was
owned by their parents. Then, brother 4 say to sister 1, Let us file
a case. But sabi ni sister 1, Pilitin mo muna ako. Then she says,
Ayoko nga, hindi mo ako pinilit eh! Meaning, all of them will
suffer because ayaw ni sister 1 mag-file ng kaso.
Even if neither misjoinder nor non-joinder is a ground of 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, R 17.
Q: Does it mean to say therefore, that the plaintiff has the license
to include anybody in an action? Like for example, I have a case
against somebody in the class, the trouble is in the meantime, I
cannot identify who among you who did the wrong to me. So I will
file a case against all of you. Anyway later on, I can dump you.
Now, is this allowed?
Q: Now, what is the remedy of the 4 brothers?

A: Under Section 10, include the one who refused as one of the
defendants. If there is unwilling plaintiff, name him as defendant
whether he likes it or not.
A: NO. That is not a license. What the law contemplates, according

to the SC, the party was joined in good faith believing that he was a
defendant but actually it turned out to be wrong. So, you have no
right to sue anybody just like that. That is not an excuse for suing
any party left and right. In the case of
MISJOINDER AND NON-JOINDER OF PARTIES

Sec. 11. Misjoinder and non-joinder of parties.
Neither misjoinder nor non-joinder of parties
is ground for dismissal of an action. Parties
may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage of the action and on
such terms as are just. Any claim against a
misjoined party may be severed and
proceeded with separately. (11a)
REPUBLIC vs. SANDIGANBAYAN 173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 does not comprehend whimsical

and irrational dropping or adding of parties in a complaint.
What it really contemplates is erroneous or mistaken nonjoinder and misjoinder of parties. No one is free to join
anybody in a complaint in court only to drop him
unceremoniously later at the pleasure of the plaintiff. The rule
presupposes that the original inclusion had been made in the
honest conviction that it was proper and the subsequent
dropping is requested because it turned out that such
inclusion was a mistake. And this is the reason why the rule
ordains that the dropping is on such terms as are just (also
Lim Tan Hu vs. Ramolete 66 SCRA 425).
This is similar to Section 6 of Rule 2 misjoinder of causes of action

is not a ground for dismissal of an action. Misjoinder or non-joinder
at parties is not a ground for a motion to dismiss because at any
stage of the case, the court can order a misjoined party to be
removed or a party not joined to be included.
Q: Do you know what MISJOINDER of parties mean?
A: It means that two or more parties should not be joined but they
are improperly joined. A good example is, if there is no common
question of fact or law. Meaning, you do not have any business to
be here but you are joined or misjoined. That is what we call
misjoinder of parties. It is also known as spurious class suit.
Note: that objections to defects in parties should be made at the

earliest opportunity, i.e. the moment such defet becomes
apparent, by a Motion to Strike the Names of the Parties
impleaded. Objections to misjoinder cannot be raised for the first
time on appeal.
Well, NON-JOINDER is different. A party who should be joined

was not joined such as a necessary party.
CLASS SUIT
Q: What happens if a party is misjoined or if there is a non-joinder,

should the case be dismissed?
SEC. 12. Class suit. When the subject matter

of the controversy is one of common or
general interest to many persons so
numerous that it is impracticable to join all as
parties, a number of them which the court
finds to be sufficiently numerous and
representative as to fully protect the
A: No, that is not a ground for dismissal.

Q: So what is the remedy then?
89

interests of all concerned may sue or defend

for the benefit of all. Any party in interest
shall have the right to intervene to protect
his individual interest. (12a)
GENERAL RULE: if there are several real parties in interest, they
shall be included in the case whether indispensable or necessary.
Example: There are 30 of us. The general rule is that all parties in
interest, indispensable or necessary shall be included because
under Sec. 2 every action must be prosecuted or defended in the
name of the real party-in-interest.
1)
The subject matter of the controversy is one of

common or general interest to many persons (such
as the funds of the association in the case of
POLISTICO); and
2)
The parties are so numerous that it is impracticable

to bring them all before the court;
The parties actually before the court are sufficiently
numerous and representatives as to fully protect
the interests of all concerned; and
3)
4)
EXCEPTION: to the General Rule: Class Suit.
The representatives sue or defend for the benefit of

all. Berses v. Villanueva 25 Phil. 473; Sulo ng Bayan,
Inc. v. Araneta 72 SCRA 347)
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 &
Trust Bank 58 SCRA 559)
A class suit is an action where one or more may sue for the benefit
of all implying that the parties are so numerous and it is
impracticble to bring them all to court.
The requisites for said class action must also be complied with.
Meaning, some of you will sue to represent the rest. That is also
known as the doctrine of virtual representation. The concept of
a class suit was first enunciated in the old case of
BORLAZA vs. POLISTICO 47 Phil. 345
There is no class suit in an action filed by 400 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.
FACTS: This case has something to do with raffle. A group of

people decided to form an association which they called
Turnuhang Polistico. You become a member of this
association by contributing a certain sum of money. And then
every Sunday after mass, half of the collection will go to the
treasurer of the association. The other half will be raffled off.
This has been going on for months and years. The time came
when the funds of the association became very big. Some of
the members, in behalf of all the members, decided to file a
case against the officers to render an accounting of all the
amounts. The real parties in interest would be the members.
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.
ISSUE: Is the suit filed by some members in behalf of some

members proper?
Example is a taxpayers suit filed in behalf of all the taxpayers in

the Philippines. And there is no specific number of persons that is
provided by law.
HELD: YES, because if We will require all the members to

appear, it will be quite impossible. Therefore, some members
must be made to sue but only in behalf of all the members
who are not around and it is impracticable to bring them all to
the court. A number of them may sue for the benefit of all.
Another example is a stckholder's derivative suit, though both are

subject to the other requisites of the corresponding governing law
especially on the issue of locus standi. (Regalado, p. 97)
Now, we will go to some interesting cases on class suit decided by
the Supreme Court:
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.
Consolidatred Bank & Trust Company, 58 SCRA 559; Borlasa v.
Polistico 47 Phil. 345)
SULO NG BAYAN vs. ARANETA, INC 72 SCRA 347 [1976]

FACTS: This concerns the big property of the Aranetas in
Quezon City. It has been the subject matter of litigation for
the past years 3 or 4 decades. It is a big track of land in
Quezon City occupied by so many people who want to acquire
it. They are questioning the title of the Aranetas
Q: What are the CONDITIONS FOR A VALID CLASS SUIT?

A: Under Section 12, the following are the conditions of a valid
class suit:
90

So, Sulo (torch) ng Bayan is the association of squatters. Since

the properties of the Araneta is very big, they subdivided it.
Then a case was filed by Sulo ng Bayan Association against
Araneta to annul the title of the latter.
FACTS: Oposa et al were all minors. Some were small boys

duly represented by their parents. They filed a case against
then DENR Secretary Factoran. The prayer in the case is to
order the DENR to cancel all existing Timber License
Agreements (TLAs), to cease and desist from proceeding,
accepting, processing, renewing all accruing new TLAs. So, in
effect, it prays for a total log ban in the country to preserve
the remaining forest all over the Philippines.
ISSUE #1: Whether or not the action was filed in the name of
the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It
violates Section 2 the action must be prosecuted and
defended in the name of the real parties in interest. The
members occupying the land are the plaintiffs. The
association is not the one occupying the lot. So, the first
question is, who should be the plaintiff? It should be the
members.
These young boys sue with their parents. They are suing in
their behalf, in behalf of the other citizens who are of their
age because they stand to suffer if the environment will be
deteriorated. They say that they are entitled to the full
benefit, use and enjoyment of the natural resources of our
countrys rich tropical rainforests. They say, the case was filed
for themselves and others for the preservation of our rainforest and we are so numerous that it is impracticable to bring all
plaintiffs to court. They say that they represent their
generations and generations yet unborn.
ISSUE #2: Whether or not the action was properly pleaded as

a class suit
HELD: NO. This is the more important reason why they cannot
qualify as a class suit: In a class suit, the subject matter is of
common interest to all.
HELD: The civil case is indeed a class suit. The case however
has a special and novel element. The personality of the minors
to sue for the succeeding generations is based on the concept
of inter-generational responsibility insofar as a balanced and
healthful ecology is concerned. Every generation has a
responsibility to preserve the ecology. The minors right to a
healthful environment constitute at the same time the
performance of the obligation to ensure the protection of the
rights or the generations to come.
To illustrate:
You are Occupant No. 1, and occupies a particular lot over
which he/she has interest in but he/she does not have
interest over the other lots which he/she does not occupy. If
that is so, then the subject matter is not of common interest.
The interest of one occupant is only on the lot he occupies.
Q: In case of doubt, should a class suit be allowed?
What should be done is for all of them to sue together to cover the
entire property, for each one has a lot. So, in that case, Section 6
should be applied permissive joinder of parties because there is a
common question of fact. This is more of permissive joinder of
Parties rather than a class suit. Thats why you can confuse Section
6 with Section 12. But the permissive joinder of parties requires
that all should be impleaded. Unlike in a class suit, the subject
matter is of interest to everybody and we cannot all be joined
because we are so numerous.
A: NO. When the issue is not so clear, a class suit should not be
allowed because class suit is an exception to the general rule that
all parties should be included.
CADALIN vs. POEA ADMINISTRATOR 238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should be

allowed with caution because the fact that you represent
others is only a fiction of law. For all you know, those others
may not want to be represented. That is why the court is
extra- cautious in allowing class suits because they are the
exceptions to the condition sine qua non requiring joinder of
all indispensable parties.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs.

SULPICIO LINES May 19, 1989
RE: Doa Paz Tragedy
FACTS: There we so many relatives who filed a case against
Sulpicio Lines and there was an attempt to file a class suit in
behalf of everyone who were drowned including those who
were not identified.
In an improperly instituted class suit, there would be no

problem it the decision secured is favorable to the plaintiffs.
The problem arises where the decision is adverse to them. In
which case, the parties who are impleaded through their selfappointed representatives would surely plead denial of due
process.
HELD: That cannot be. The survivors have no interest in the

death of other passengers. The interest in this case is
individual. What would have been proper is permissive joinder
of parties because of common question of tact or law, but not
class suit.
Q: Distinguish a representative suit from a class suit.

A: In the case of
OPOSA vs. FACTORAN 224 SCRA 12 [1993]
91

LIANAS SUPERMARKET vs. NLRC 257 SCRA 186 [May 31,

1996]
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the
plaintiff is uncertain against who of several
persons he is entitled to relief, he may join
any or all of them as defendants in the
alternative, although a right to relief against
one may be inconsistent with a right of relief
against the other. (13a)
FACTS: A labor union filed a case against the employer in

behalf of hundreds of employees. Is this a representative suit
or a class suit?
HELD: What makes the situation a proper case for a class
suit is the circumstance that there is only one right or cause
of action pertaining or belonging in common to many
persons, not separately or severally to distinct individuals.
The object of the suit is to obtain relief for or against
numerous persons as a group or as an integral entity, and not
as separate, distinct individuals whose rights or liabilities are
separate from and independent of those affecting the
others.
Alternative defendants is also related to alternative causes of action even if your right against one is inconsistent with your right
to relief against the other party, you may file a suit against the
alternative defendant. (c.f. Rule 2, Section 5 Joinder of Causes of
Action)
You filed a case against the operators of two vehicles. In effect,
your cause of action is either culpa aquiliana or culpa contractual.
Is that not inconsistent? The law says, although a right to relief
against one may be inconsistent with a right against the other. In
other words, even if the two causes of action are inconsistent with
each other, it is allowed.
In a representative suit, there are different causes of action

pertaining different persons.
In the present case, there are multiple rights or causes of
action pertaining separately to several, distinct employees
who are members of respondent Union. Therefore, the
applicable rule is that provided in Rule 3 on Representative
Parties. Nonetheless, as provided for in the Labor Code, a
legitimate labor organization has the right to sue and be sued
in its registered name. This authorizes a union to file a
representative suit for the benefit of its members in the
interest of avoiding an otherwise cumbersome procedure of
joining all union members in the complaint, even if they
number by the hundreds. For convenience, the Labor Code
allows a union to file a representative suit.
As a matter of fact, this is the best policy because the plaintiff is a

sure winner. The only question is, who among the two will be held
liable.
Although the law is silent, if there is such a thing as alternative
defendants, there is no reason why the grounds for alternative
plaintiffs should not be allowed.
Q: May plaintiffs join in the alternative?
A: YES, plaintiffs may join in the alternative under the same
principle as alternative joinder of defendants. When several
persons are uncertain as to who among them is entitled to relief
from a certain defendant, they may join as plaintiffs in the
alternative. This is also sanctioned by the rule on permissive joinder
of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the
principal and his agent may join as plaintiffs in the alternative
against a defendant. If the agency is proved, the relief is awarded
to the principal. If not, award is then made to the agent.
It is important to note the following:

1)
2)
3)
CLASS SUIT
REPRESENTATIVE SUIT
DERIVATIVE SUIT only peculiar to the corporation law
where the minority files a suit in behalf of the entire
corporation because an intra-corporate remedy is
useless or because of the failure of the board of
directors, deliberate or otherwise, to act in protection of
the corporation (Blacks 5th Ed. 399; Lim vs. Lim-Yu 352
SCRA 216).
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; Sec.5[b] Rule 6; Sec. 20, Rule 14)
In a derivative, suit, the cause of action belongs to the corporation

and not to the stockholder who initiates the suit. In a class suit, the
cause of action belongs to the members of the class.
Assume that 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 X do if he wants to
sue?
Class suit and permissive joinder of parties

In a class suit there is one single cause of action pertaining to
numerous persons while in permissive joinder there are multiple
causes of action separately belonging to several persons.
He should sue the vehicle drivers/owners in the alternative.

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
92

that D had received the goods. Should P sue D or should he sue E?

P should sue both but in the alternative.
name and surname of the accused or any

appellation or nickname by which he has
been or is known. If his name cannot be
ascertained, he must be described under a
fictitious name with a statement that his true
name is unknown.
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 vs. Manila 70
SCRA 187).
If the true name of the accused is thereafter

disclosed by him or appears in some other
manner to the court, such true name shall be
inserted in the complaint or information and
record. (7a)
Sec. 14. Unknown identity or name of

defendant. Whenever the identity or name of
a defendant is unknown, he may be sued as
the unknown owner, heir, devisee, or by such
other designation as the case may require;
when his identity or true name is discovered,
the pleading must be amended accordingly.
(14)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT

Sec. 15. Entity without juridical personality as
defendant. When two or more persons not
organized as an entity with juridical
personality enter into a transaction, they may
be sued under the name by which they are
generally or commonly known.
Requisites:
1)
there is a defendant;
2)
his/her identity is unknown;
3)
fictitious name may be used because of ignorance of

defendant's true name and said ignorance is alleged in the
complaint;
4)
identifying description may be used; sued as unknown

owner, heir, deviseee or other designation;
5)
amendment to the pleading when true name is discovered;

and
In the answer of such defendant, the names

entity must all be revealed.
Requisites:
1)
6)
2)
3)
defendant is the defendant being sued, not a mere

additional defendant.
there are two or more persons not organized as a

juridical entity;
they enter into a transaction;
a wrong or delict is committed against a third person in
the course of such transactions.
Rule 1, Section 1 provides that only natural of juridical persons may

be sued.
Service of summons upon a defendant whose identity is unknown

may be made by publication in a newspaper of general circulation
in accordance with Sec. 14 of Rule 14.
Entity without juridical personality as defendant. Under the old

law, this was known as suing two or more persons involved in a
business under a common name. When two or more persons
transact in a business under a common name, they may be sued
under their common name.
Q: Can you sue somebody who is unknown?

A: YES, under Section 14.
BAR PROBLEM: While L was walking on the street. He was bumped
by a car, say a Toyota Altis, 2001 model, color blue. Now, so far, he
could not determine who is the owner. If you are the lawyer of L,
how would you sue the defendant?
Q: Who are really the defendants here?

A: The persons involved.
Now, it is worded in this manner: When two or more persons not
organized as an entity with juridical personality, instead of a
common name. You cannot sue the entity because it has no
juridical personality. But you do not also know the members of that
entity, so the law allows you to file a case against the entity.
A: Under Section, I will sue the owner of that car as an unknown

defendant. I can place in my complaint, L, plaintiff, vs. the
registered owner of Honda motor vehicle with plate number so and
so. And later if you discover the true identity of the owner, we can
amend the complaint to place the name of the defendant.
Under the second paragraph of Section 15, when the defendants

file an answer, they must file under their names as they are really
the real parties in interest. When the lawyer answers the
complaint, he is duty-bound to provide the names of all the
defendants.
Section 14 is similar with Rule 110 in Criminal Procedure a case

may be filed against an unknown accused.
RULE 110, SEC. 7. Name of the accused. The
complaint or information must state the
93

Q: How do you summon this kind of defendant?
administrator and the court may appoint a

guardian ad litem for the minor heirs.
A: Rule 14, Section 8:

The court shall forthwith order said legal
representative or representatives to appear
and be substituted within a period of thirty
(30) days from notice.
RULE 14, Sec. 8. Service upon entity without

juridical personality. When persons associated
in an entity without juridical personality are
sued under the name by which they are
generally or commonly known, service may
be effected upon all the defendants by
serving upon any one of them, or upon the
person in charge of the office or place of
business maintained in such name. But such
service shall not bind individually any person
whose connection with the entity has, upon
due notice, been severed before the action
was brought. (9a)
If no legal representative is named by the

counsel for the deceased party, or if the one
so named shall fail to appear within the
specified period, the court may order the
opposing party, within a specified time, to
procure the appointment of an executor or
administrator for the estate of the deceased
and the latter shall immediately appear for
and on behalf of the deceased. The court
charges in procuring such appointment, if
defrayed by the opposing party, may be
recovered as costs. (16, 17a)
Correlate this with Rule 36, Section 6:

Sec. 6. Judgment against entity without
juridical personality. When judgment is
rendered against two or more persons sued
as an entity without juridical personality, the
judgment shall set out their individual or
proper names, if known. (6a)
First of all, there are cases when a party to a pending action dies
and the claim is not thereby extinguished (this is what they called
an action which survives as we will explain later) and there are
certain actions where if a party dies, the claim is automatically
extinguished. Meaning, the death of a party causes death of the
action. But these are very few. In majority of cases when the party
dies, the case or the cause of action continues.
GENERAL RULE: actions must be filed against real parties in

interest.
Examples of actions which survive the death of a party:
EXCEPTIONS: (When may an action be filed without naming all the

parties in involved?)
1.
2.
3.
Class suit (Section 12, Rule 3);

Entity without juridical personality (Section 15, Rule
3);
Any co--owner may bring an action for ejectment
(Article 487, New Civil Code)
Actions and obligations arising from delicts survive (Aguas

v. Llamas 5 SCRA 959)
Actions based on the tortious conduct of the defendant

survive the death of the latter. (Melgar v. Benviaje 179
SCRA 196)
Actions to recover real and personal property, actions to

enforce a lien thereon, and actions to recover damages for
an injury to person or property and suits based on the
alleged tortious acts of the defendant survive. (Board of
Liquidators v. Kalaw 20 SCRA 987). 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 GRT+ 143365 Dec. 4, 2008)
An action of ejectment survives the death of a party. It

continues until judgment because the issue concerning the
illegality of the defendants 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 236; Vda de Salazar v. CA; Florendo jr.
v.Coloma 129 SCERA 304)
Actions for the recovery of money, arising from a contract

express or implied are not extinguished by the death of the
defendant. (Sec. 20 R 3)
Instances where substitution of parties is proper

EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the
court within thirty (30) days after such death
of the fact thereof, and to give the name and
address of his legal representative or
representatives. Failure of counsel to comply
with this duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed to
be substituted for the deceased, without
requiring the appointment of an executor or
94

Duty of lawyer of the deceased
estate. Many courts do not enforce it strictly. Normally, patay

na, O! Ito ang heirs o! OK! Substitute! Actually, that is
wrong based on LAWAS case. The priority is given to the
administrator or executor. It is only when there is
unreasonable delay in the appointment, or when the heirs
resort to extrajudicial partition because there is no more
administrator or executor in extrajudicial settlement.
It is the duty of the lawyer of the deceased to inform the court

within 30 days after the death of the party thereof. He must
inform the court and give the name and address of his legal
representative/s (e.g. administrator or executor of the estate)
In legal ethics, the lawyer- client relationship is automatically
terminated by the death of the client because the lawyer-client
relationship is personal. Neither does he become the counsel of the
heirs of the deceased unless his services are engaged by said heirs
(Lawas vs. CA 146 SCRA 173). But procedurally, he must tell the
court and give the name of the legal representative. The latter may
re-hire the lawyer but under a new contract.
Lawas ruling is no longer applicable
Under the second paragraph of Sec. 16 of Rule 3 states: The

heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator
The purpose there is for substitution so that the legal

representative will be ordered substituted. And there is a new
provision under the new rules. That is, failure of the counsel to
comply with his duty shall be a ground for disciplinary action. That
is not found in the prior rule. So, the lawyer can be subjected to
disciplinary action.
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. CA
xxxxx 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 the very moment of death, they stepped into the shoes of
the deceased and acquired the rights as devisee/legatee. Said heirs
may designate one or some of them as their representative before
the trial court. (San Juan v. Cruz GR No. 167321, July 31, 2006)
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 30 days from notice (Sec. 16 Rule 3). 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
(Aguas vs. Llamas 5 SCRA 959)
Purpose and Importance of substitution of the deceased
So the provision continues, the heirs of the deceased may be

allowed to be substituted for the deceased without requiring the
appointment of an executor or administrator. And the court may
appoint a guardian ad litem for the minor heirs.
The 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. CA 278 SCRA 793; Vda de
Salazar v. CA 250 SCRA 305)
So, other than the legal representative, which refers to the

executor or administrator, the alternative will be to substitute the
heirs, such as the surviving children, wife or spouse.
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)
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. (Vda. De
Haberer v. CA 104 SCRA 534; Fereira v. Vda de Gonzales 104 Phil.
143; Torres v. CA 278 SCRA 793)
Although there was a case decided by the SC way back in 1986 in

the case of
LAWAS vs. CA 146 SCRA 173
HELD: The priority of substitution would be the executor or

administrator not the heirs. The heirs would only be allowed
to be substituted if there is:
1) An unreasonable delay in the appointment of
administrator or executor, or
2) when the heirs resort to extrajudicial partition
Note this portion in the case of:

VDA. DE SALAZAR vs. CA 250 SCRA 303 [November 23, 1995]
But outside of those two reason, the law always gives priority
to the administrator or executor.
FACTS: This is an ejectment case. The defendant died while

the case is going on. What is the procedure? There should be
substitution. But there was no substitution in the case for ten
Under the rule, priority is given to the legal representative of

the deceased. That is, the executor or the administrator of his
95

years, until it was decided. The court was not informed of the
death of the defendant. Until finally, there was a decision.
Requisites:
1)
ISSUE: When there is failure to effectuate the substitution of

heirs before the rendition of judgment, is the judgment
jurisdictionally defective?
2)
3)
HELD: NO, the judgment is valid where the heirs themselves

appeared before the trial court and participated in the
proceedings. Therein, they presented evidence in defense of
the deceased defendant. It is undeniably evident that the
heirs themselves sought their day in court and exercised their
right to due process.
the action must primarily be for recovery of money,

debt, or interest therein;
the claim, subject of the action, arose from contract,
express of implied; and
defendant dies before the entry of final judgment of the
court in which the action was pending.
Under this section, the death of the defendant will not result in the
dismissal of the action. The deceased shall be substituted by his
legal representatives in the manner provided for in Sec. 16 of this
Rule 3 and the action continues until the entry of final judgment.
However, execution shall not issue in favor of the winning party.
The final judgment should be filed as a claim against the estate of
the decedent without need of proving the claim.
In other words, when there was a defect the heirs however cannot
use that because they themselves appeared and continued the
case. So, in effect, there was estoppel.
The best example here is an action to collect an unpaid loan. And

while the case is pending the defendant died. What will happen to
the case? The law says: If the defendant dies before the entry of
the final judgment in the court at the time of death, it shall not be
dismissed but it shall instead be allowed to continue until entry of
final judgment.
No requirement for service of summons

Service of summons is not required to effect a substitution.
Nothing in Sec. 16 of this Rule mandates service of summons.
Instead of service of summons the court shall, under the authority
of the same provision, order the legal representative of the
deceased to appear and be substituted for the said deceased
within 30 days from notice.
Under the OLD RULES, the case shall be dismissed. So, the civil case
is not suspended but it will be dismissed and the creditor can file a
case against the estate of the deceased under the Rules on Special
Proceedings. But definitely the civil case dies when the defendant
dies.
By virtue of the same rule, it is significant to know that it is not the

amendment of the pleading, but the order of substitution and its
service that effects the substitution of the deceased by his
representative or heir.
Now, under the NEW RULE, the case will not be dismissed but
rather, the case will now continue until entry of final judgment.
Meaning, until it becomes final and executory.
Note: If the action does not survive (like the purely personal actions
of support, annulment of marriage, and legal separation), the court
shall simply dismiss the case. It follows then that substitution will
not be required.
Q: But of course, if the judgment is favorable to you (the plaintiff),

can you move to execute? Can you move to execute the decision
against the property of the defendant?
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
A: NO, because the law provides, xxx a favorable judgment

obtained by the plaintiff therein shall be enforced in the manner
specially provided in these Rules for prosecuting claims against the
estate of a deceased person.
Now, one of the radical changes again introduced by the new rules
is the effect of the death of the defendant in a money claim
action to collect a sum of money.
Sec. 20. Action on contractual money claims.
When the action is for recovery of money
arising from contract, express or implied, and
the defendant dies before entry of final
judgment in the court in which the action was
pending at the time of such death, it shall not
be dismissed but shall instead be allowed to
continue until entry of final judgment. A
favorable judgment obtained by the plaintiff
therein shall be enforced in the manner
especially provided in these Rules for
prosecuting claims against the estate of a
deceased person. (21a)
Q: And what is that procedure?

A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of
the Rules of Court, but there will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While
there is a case and a party dies, what will happen to the case?
A: I will distinguish Is that an ACTION WHICH DOES NOT SURVIVE
or an ACTION WHICH SURVIVES?
96

ACTION WHICH DOES NOT SURVIVE
2a2c) If the defendant died after levy or

execution but before the auction sale,
we will now apply Section 7[c] of Rule 39:
An action which does not survive is an action which is abated upon

the death of a party. The case cannot go on once a party dies. And
normally, that refers to actions which are purely personal in
character like an action for annulment of marriages, an action for
declaration of the nullity of marriage or, an action for legal
separation, or an action for support. These are the cases arising
from the Family Code.
Rule 39, Sec. 7. Execution in case of

death of party. In case of the death of
party, execution may issue or be
enforced in the following manner:
xxxxxx
Example: The husband files a case against the wife for annulment
of marriage or legal separation. One of them dies. When one of the
parties dies, the marriage is dissolved. There is nothing to annul
because the marriage is already dissolved. So, these are the actions
which are purely personal .
(c) In case of the death of the judgment

obligor, after execution is actually levied
upon any of his property, the same may
be sold for the satisfaction of the
judgment obligation, and the officer
making the sale shall account to the
corresponding executor or administrator
for any surplus in his hands. (7a)
Q: So, what is the effect of the death of the party in actions which
does not survived?
A: The case is dismissed!
1)
Meaning, if death occurs after the levy, auction sale proceeds as

scheduled. And if there is an excess, the excess shall be delivered to
the administrator or executor.
ACTIONS WHICH SURVIVE

2a.) CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will
continue. The heirs or legal representatives
will proceed. So, there is substitution.
2b.) NON-CONTRACTUAL MONEY CLAIMS:

EXAMPLE: an action for recovery of property, real or
personal like replevin, forcible entry, unlawful detainer,
action publiciana, action reinvidicatoria, or action for
damages, (damages that is not the same for transaction
of money because damages arising from culpa aquiliana
is one not arising from contract.)
2a2.) If it is the defendant who dies, the

question is when did he die? Before entry of
final judgment or after entry? This is where
Section 20 will come in.
2a2a.) If the defendant died before entry
of final judgment, you apply Section 20
of Rule 3. Meaning, the case shall not be
dismissed but shall be allowed to
continue until entry of final judgment.
And the favorable judgment obtained by
the plaintiff therein shall be enforced in
the manner especially provided in these
Rules for prosecuting claims against the
estate of a deceased person, and that is
Section 5 of Rule 86.
If a party dies in an action which survives which is a noncontractual money claim, obviously, there is substitution
of parties. So, what are these non-contractual money
claims which survive? These are those mentioned in
Section 7 of Rule 86 and Section 1 of Rule 87. That is in
the study of Special Proceedings on settlement of the
estate of a deceased person.
Note: What Section 20 says is that: before the case can be decided
and the defendant dies (in actions involving money claims) the case
shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. BUT CONTINUE AGAINST WHOM? Against
the deceased? Now, to my mind, you correlate this with Section 16
--- there should still be substitution.
2a2b.) If the defendant died after the

entry of the final judgment but before
execution (after the judgment became
final but before there could be levy or
execution) you cannot move to execute.
Again, you apply Section 5 of Rule 86
which is the governing rule you file
your judgment as a claim against the
estate of the deceased defendant.
[Section 5, Rule 86] The purpose there is,
so that the creditor will share with the
other creditors pro-rata in the
distribution of the estate.
But assuming, there was no substitution and the heirs fought in the
case; there is waiver because the defect is procedural. Just like
what happened in the case of VDA. DE SALAZAR vs CA 250 SCRA
305). Actually, what Section 20 emphasized is that, the action shall
not be dismissed but shall continue to emphasize that it is now
different compared with the prior RULE. But obviously, there will
always be a substitution
Sec. 17. Death or separation of a party who is
a public officer. When a public officer is a
97

party in an action in his official capacity and

during its pendency dies, resigns, or
otherwise ceases to hold office, the action
may be continued and maintained by or
against his successor if, within thirty (30) days
after the successor takes office or such time
as may be granted by the court, it is
satisfactorily shown to the court by any party
that there is a substantial need for continuing
or maintaining it and that the successor
adopts or continues or threatens to adopt or
continue the action of his predecessor.
Before a substitution is made, the party or
officer to be affected, unless expressly
assenting thereto, shall be given reasonable
notice of the application therefor and
accorded an opportunity to be heard. (18a)
by his legal guardian or guardian ad litem.

(19a)
EXAMPLE: F files a case against K. While the case is pending, K
becomes insane. The case will continue but K has to be assisted by
his guardian ad litem.
This is related to Rule 3, Section 3 on representative party but in
Section 3, K should be already insane before the case is filed.
Sec. 19. Transfer of interest. In case of any
transfer of interest, the action may be
continued by or against the original party,
unless the court upon motion directs the
person to whom the interest is transferred to
be substituted in the action or joined with
the original party. (20)
General Rule: The rule does not consider the transferee an
indispensable party. Hence, the action may proceed without the
need to imp lead him.
Requisites:
1)
public officer is a party to an action in his official

capacity;
2)
during the pendency of the action he either dies, resigns,

or other wise ceases to hold office;
3)
it is satisfactorily shown to the court by any party, within

30 days after the successor takes office, that there is a
substantial need for continuing or maintaining the
action;
Exception: When the substitution by or joinder of the transferee is

ordered by the court.
A transferee pendent lite:
4)
that the successor adopts or continues or threatens to

adopt or continue the action of his predecessor; and
5)
the party or officer affected has been given reasonable

notice of the application therefor and accorded an
opportunity to be heard.
1)
2)
The case will be dismissed if the interest of plaintiff is transferred

to defendant unless there are several plaintiffs, in which case, the
remaining plaintiffs can proceed with their own cause of action.
EXAMPLE: R files a case against L to recover a piece of land. While
the case is pending, L sold the land to E. E now assumes the risk
and takes the property subject to the outcome of the case.
Q: What will happen to the case?

A: The following:
1)
Q: Can the case continue against L?
If the successor intends to continue with the policy.
A: YES.
EXAMPLE: Mayor Pascua threatened to demolish the

building of Mr. Nuere as a hazard. If Mayor Pascua dies,
Vice-Mayor Angeles becomes the mayor. If Vice-Mayor
Angeles who is now the mayor says that he will continue
with the demolition, he will be substituted and he is
given 30 days to comment.
2)
stands in exactly the same position as its predecessor-ininterest, th original defendant; and
bound by the proceedings had in the case before the
property was transferred to it, even if not formally
included as defendant. (Herrera, vol. 1 p. 405)
1)
2)
3)
If L loses and cannot pay, E is subsidiarily liable;

L can be removed and E will be substituted; or
L can stay and E will be added.
In all 3 cases, E will be bound by the judgment.
If the successor does not adopt the policy, the case will
be dismissed.
Sec. 21. Indigent party. A party may be

authorized to litigate his action, claim or
defense as an indigent if the court, upon an
ex parte application and hearing, is satisfied
that the party is one who has no money or
property sufficient and available for food,
Sec. 18. Incompetency or incapacity. If a party

becomes incompetent or incapacitated, the
court, upon motion with notice, may allow
the action to be continued by or against the
incompetent or incapacitated person assisted
98

shelter and basic necessities for himself and

his family.
vs. Dolefil Agrarian Reform Beneficiaries Cooperative 382 SCRA

552).
Such authority shall include an exemption

from payment of docket and other lawful
fees, and of transcripts of stenographic notes
which the court may order to be furnished
him. The amount of the docket and other
lawful fees which the indigent was exempted
from paying shall be a lien on any judgment
rendered in the case favorable to the
indigent, unless the court otherwise provides.
EXAMPLE: M files a case against K for declaration of nullity on the

ground of psychological incapacity. K alleges that Article 38 of the
Family Code is unconstitutional. So the court will rule on the
validity of the law in which case, the Solicitor General has to be
involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic
of the Philippines whose duty is to defend all the official acts of the
Government.
Any adverse party may contest the grant of

such authority at any time before judgment is
rendered by the trial court. If the court
should determine after hearing that the party
declared as an indigent is in fact a person
with sufficient income or property, the
proper docket and other lawful fees shall be
assessed and collected by the clerk of court.
If payment is not made within the time fixed
by the court, execution shall issue for the
payment thereof, without prejudice to such
other sanctions as the court may impose.
(22a)
In criminal cases, the court assigns a counsel de officio. Under the
Constitution on Bill of Rights, no person shall be denied access to
courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an indigent
if he files an application (ex-parte application) to allow him to
litigate as an indigent litigant. But if the indigent wins, he has to pay
the fees file now, pay later) the amount shall be a lien on any
favorable judgment.
The third paragraph is new. The other party may contest the claim
of the indigent if he is really an indigent or not.
Sec. 22. Notice to the Solicitor General. In any
action involving the validity of any treaty,
law, ordinance, executive order, presidential
decree, rules or regulations, the court, in its
discretion, may require the appearance of the
Solicitor General who may be heard in person
or through a representative duly designated
by him. (23a)
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 of the Philippines 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
99

Rule 4
the court may do so without need of waiting for the filing of a

motion to dismiss. (Sec. 4, Rules on Summary Procedure)
VENUE OF ACTIONS
How venue is determined
Q: Define venue.
As said before, in order to know the venue of a particular action,
the initial step is to determine if the action is personal or real. If it is
personal, the venue is transitory hence, the venue is the residence
of the plaintiff or the defendant at the option of the plaintiff. If the
defendant is a non-resident, the venue is the residence of the
plaintiff or where the non-resident defendant may be found, at the
election of the plaintiff.(Sec. 3)
A: VENUE is the place, or the geographical area where an action is

to be filed and tried. In civil cases, it relates only to the place of the
suit and not to the jurisdiction of the court. (Manila Railroad
Company vs. Attoryney General, 20 Phil. 523)
Venue 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 vs. de Castro, 324
SCRA 591 [2000]). 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, R
117) 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.
If the action is real, the venue is local hence, the venue is the place
where the real property involved, or any portion thereof, is
situated. (Sec. 1). However, when the defendant is a non-resident
and is not found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of the defendant
located in the Philippines, the venue is the residence of the plaintiff
or where the property or any portion thereof is situated. (Sec. 3)
VENUE OF REAL ACTIONS
Means of waiving venue:

1.
2.
3.
4.
5.
Section 1. Venue of real actions. Actions

affecting title to or possession of real
property, or interest therein, shall be
commenced and tried in the proper court
which has jurisdiction over the area wherein
the real property involved, or a portion
thereof, is situated.
failure to object via motion to dismiss;

affirmative relief sought in the court where the case is
filed even if venue is improper;
affirmative defense in an answer;
voluntary submission to the court where the case is filed;
laches
Dismissal based on improper venue

1)
2)
Forcible entry and detainer actions shall be

commenced and tried in the municipal trial
court of the municipality or city wherein the
real property involved, or a portion thereof,
is situated. (1[a], 2[a]a)
The trial court cannot motu proprio dismiss a case on the

ground of improper venue. The court may motu proprio
dismiss an action in case of lack of jurisdiction over the
subject matter, litis pendencia, res judicata and
prescription, but not for improper venue. (Rudolf Lietz
Holdings, Inc. v. Register of Deeds of Paranaque City, 344
SCRA 68; Universal Robina Corp. v. Lim GR 154338, Oct.
5, 2007)
Q: Why does the law say tried in the proper court?

A: It is because proper court will now be the MTC or the RTC,
depending on the assessed value of the property.
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 defendants prerogative
to object to the improper laying of the venue by motu
proprio dismissing the case. (Dacuycoy v. IAC 195 SCRA
641)
The venue is the placed where the real property or any portion
thereof is located.
If a property is located at the boundaries of two places: file the
case in either place at the option of the plaintiff.
When the case involves two properties located in two different
places:
When court may motu proprio dismiss based on improper venue

1)
The court may dismiss on improper venue, at its instance, in an
action covered by the rules on summary procedure. Under these
rules, 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. The dismissal may be made outright, which means that
2)
100
if the properties are the object of the same transaction,

file it in any of the two places; and
if they are the subjects of two distinct transactions,
separate actions whould be filed in each place unless
properly joined.

VENUE OF PERSONAL ACTIONS
But there are also actions which appear to be real but in reality, are
personal actions. Like what happened in the case of
Sec. 2. Venue of personal actions. All other

actions may be commenced and tried where
the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the
principal defendants resides, or in the case of
a non-resident defendant where he may be
found, at the election of the plaintiff. (2[b]a)
LA TONDEA DISTILLERS INC vs. PONFERRADA - 264 SCRA 540

[1996]
FACTS: A entered into a contract where she committed

herself to sell her land to B. A even placed a lis pendens on
the property but later she backed out. So B will file a case
against A for specific performance to compel her to sign the
deed of sale.
Venue of personal actions:

1)
2)
3)
Where the plaintiff or any of the principa plaintiffs

resides;
where the defendant or any of the principal defendants
resides; or
in case of a non-resident defendant but found in the
Philippines, in the place where he may be found.
ISSUE: Is this real or personal action?

HELD: It is a PERSONAL ACTION because you are not
questioning my ownership. Here, the plaintiff recognizes that
the defendant is still the owner, which is the reason why he is
still filing the case to compel him to sell.
Note: All at the election of the plaintiff.
Thus, it should be filed at the residence of the parties. The

complaint is one for specific performance with damages.
Private respondents do not claim ownership of the lot but in
fact recognized title of defendants by annotating a notice of
lis pendens. In one case, a similar complaint for specific
performance with damages involving real property, was held
to be a personal action, which may be filed in the proper court
where the party resides. Not being an action involving title to
or ownership of real property, venue, in this case, was not
improperly laid before the RTC of Bacolod City. (Adamos vs.
Tuazon 25 SCRA 30 [1968])
Situation: suppose, there are four (4) plaintiffs and 4 defendants

and the 4 plaintiffs reside in 4 different cities or municipalities. So
there are 8 choices for venue because the law says, where the
plaintiff or any of the principal plaintiffs or where the defendant or
any of the principal defendants reside
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because
there is such a thing as nominal defendant and nominal plaintiff..
EXAMPLE of a nominal party: When a party wants to file a case to
annul an execution sale or to annul a levy, normally it impleads the
sheriff as party. But the sheriff is not the principal party but is only
a NOMINAL PARTY. So, the residence of the sheriff is not
considered the sheriff being a nominal party only.
Q: Where several or alternative reliefs are sought in an action, and

the reliefs prayed for are real and personal, how is venue
determined?
This is the original concept of forum shopping which is legitimate

but had later been abused. That is why there is a SC case where
Justice Panganiban cited the history of forum shopping entitled
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259),
January 24, 1996)
A: Where several or alternative reliefs are prayed for in the

complaint, the nature of the action as real or personal is
determined by the primary object of the suit or by the nature of
the principal claim. Thus, where the purpose is to nullify the title to
real property, the venue of the action is in the province where the
property lies, notwithstanding the alternative relief sought,
recovery of damages, which is predicated upon a declaration of
nullity of the title. (Navarro vs. Lucero, 100 Phil. 146)
How to distinguish real from personal action

There are instances when it is easy to distinguish whether the
action is real or personal and there are also instances when it is
difficult.
Where a lessee seeks to establish his right to the hacienda, which

was subsequently sold, for the purpose of gathering the crops
thereon, it is unnecessary to decide whether the crops are real or
personal property, because the principal claim is recovery of
possession of land so that he may gather the fruits thereof. (LTC vs.
Macadaeg, 57 O.G. 3317)
EXAMPLE: An action for annulment of a contract of sale or

rescission of contract of sale of real property. Generally, an action
for annulment or rescission is a personal action. But suppose, I will
file a complaint to annul or rescind a contract or a deed of sale over
a parcel of land which we made one year ago which land is situated
in Mandaue City and the purpose of my action is to recover the
ownership of that land is this a real or personal action?
Now, going back to Section 2.
It is a real action because the primary object of the suit is to

recover the ownership of real property. It seems to be personal but
in reality it is a real action. So the venue is governed by Section 2.
101

RESIDENCE OF THE PARTIES
The ruling in the case of ANTILLON was reiterated in the 1993 case
of YOUNG AUTO SUPPLY CO. vs. COURT OF APPEALS (223 SCRA
670)
Where is the residence of the parties? Because residence in law

could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL
OR PHYSICAL RESIDENCE.
Because the law said where the plaintiff or any of the principal
plaintiffs.. So if the corporation is suing with someone from Cebu
City, even if its head office is in Manila, the corporation can file in
Cebu City because of the residence of my co-plaintiff or the
residence of the defendant. But outside of that, a corporation
cannot sue outside of its head office because its residence is there.
That is the case of YOUNG AUTO SUPPLY.
With the exception of only one case, the word residence and
venue has been uniformly interpreted by the SC to mean ACTUAL
or PHYSICAL RESIDENCE not legal domicile. Alright, there are so
many casesalready: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA
189); HERNANDEZ vs. RURAL BANK OF THE PHIL (81 SCRA 75);
RAYMOND vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA 54).
OR IN THE CASE OF A NON-RESIDENT DEFENDANT WHERE HE

MAY BE FOUND
EXCEPT for one case decided way back in 1956 the case of
CORRE vs. CORRE 100 Phil 221
Suppose the defendnt is not residing here in the Philippines but is

just on vacation and you want to sue him. What is now the point of
reference?
FACTS: An American who resides in San Francisco who came

to the Philippines rented an apartment in Manila to sue his
wife who is a Filipina. The wife is from Mindanao. And then
the American husband filed the case in Manila because he
rented an apartment in Manila.
Did you notice the phrase or in the case of a non-resident

defendants where he may be found. Now what does that mean? It
means to say that the defendant is not actually residing in the
Philippines but he is temporarily around because he is found in the
Philippines. Example is a balikbayan who is still on vacation.
HELD: You are not a resident of Manila. Your residence is in

San Francisco that is your domicile. So that is to compel the
American to file the case in the residence of the wife rather
than the wife going to Manila.
PROBLEM: Suppose a Filipino who is already residing abroad

decided to come back this Christmas for a vacation. When he
landed at the Manila Domestic Airport, you met him as your friend
and the first thing he requested you is if he could borrow some
pesos because his money is in dollars. He borrowed from you
P15,000.00 promising to pay in a weeks time.. One week later, still
he has not paid you and obviously it seems he will not pay you. So
you decided to sue him while he is around to collect, where is the
venue of the action?
So the case of CORRE is the only exception where the SC said,

residence means domicile. All the rest, physical! In the case of
CORRE, maybe the SC there was just trying to help the Filipina. If
we will interpret the rule on venue as physical, it is the Filipina who
will be inconvenienced.
RESIDENCE OF A CORPORATION
A: The law says, generally where the plaintiff resides or where the
defendant resides. The trouble is, the defendant has no residence
here because he is already residing abroad. But he is temporarily
here in the Philippines.
Under Rule 1, a corporation can sue and be sued. But what is the
residence of a corporation? Under the corporation law, the
residence of a corporation is the place where its head or main
office is situated.
You can sue him where he may be found. If he decides to stay in

Cebu, that is where the proper venue rather his permanent
residence. So where he may be found is the alternative venue. The
phrase where he may be found means where he may be found
here in the Philippines for a non-resident defendant but
temporarily staying in the Philippines.
CLAVECILLA RADIO SYSTEM vs. ANTILLON 19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla

questioned the venue because its head office is in Manila. The
plaintiff argued that it can be sued because it has a branch in
Cagayan.
Q: Suppose a defendant is a non-resident and he is not even here.

Like for example, your neighbor borrowed money from you and the
nest thing you heard is that he left the country. He has already
migrated to the states. Of course you know his address there. Can
you sue him in the Philippine court, a defendant who is no longer
residing here and is not found in the Philippines?
ISSUE: Is a corporation resident of any city or province

wherein it has an office or branch?
HELD: NO. Any person, whether natural or juridical, can only
have one residence. Therefore, a corporation cannot be
allowed to file personal actions in a place other than its
principal place of business unless such a place is also the
residence of a co-plaintiff or defendant.
A: NO, you cannot. Charge it to experience.
102

Q: Why can you not sue a person not residing here in the
Philippines and is not found here in the first place?
An action may be filed only when:
A: There is no way for Philippine courts to acquire jurisdiction over

his person. Otherwise, he will not be bound by the decision.
But in our discussion on the element of jurisdiction: subject matter,
person, res and issues, I told you that the res or the thing in dispute
is important because sometimes it takes the place of jurisdiction
over the person of the defendant. So even if the Philippine court
cannot acquire jurisdiction over the person of the defendant but
the subject of the controversy (res) is in the Philippines, then the
non-resident defendant can also be sued in the Philippines. The
court can now acquire jurisdiction over the res, subject and since
the res is here, the judgment can be enforced. It is not a useless
judgement anymore.
A: YES because the action involves the person status of the

plaintiff. The res is the status of the plaintiff who happens to be in
the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF
OF SAID DEFENDANTS LOCATED HERE IN THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of
land located here in the Philippines and I want to recover the
ownership of the piece of land.
Sec. 3. Venue of actions against nonresidents.

- If any of the defendants does not reside and
is not found in the Philippines, and the action
affects the personal status of the plaintiff, or
any property of said defendant located in the
Philippines, the action may be commenced
and tried in the court of the place where the
plaintiff resides, or where the property or any
portion thereof is situated or found, (2[c]a)
Q: What is the res?

A: The res is the land which is situated here in the Philippines.
Therefore I can sue that defendant even if he is there because the
court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no
longer residing here and is no longer found here, the action must
be:
Q: What is the difference between the non-resident defendant in

Section 2 and the non-resident defendant in Section 3?
1)
2)
A: In Section 2, the non-resident defendant may be found in the

Philippines. But in Section 3, he does not reside and is not found in
the Philippines. So, physically, he is not around.
action in rem; or
at least quasi-in rem.
In the examples given, if the action is for compulsory recognition,

that is actually an action in rem. In the suit which involves a
property here in the Philippines, at least that is an action quasi-in
rem.
Venue of ordinary civil actions against non-residents:
2)
The action affects the property or any portion thereof of

said defendants is located here in the Philippines, and
venue is the place where the property or any portion
thereof is located.
Q: Can the child file a case for compulsory acknowledgment here in

the Philippines against the father for compulsory acknowledgment?
A: YES under Section 3. Even if the person is abroad, the res of the
property in dispute is here and if he loses the case the judgment
can be enforced transfer the property to you. So it is not a useless
judgment. That is what Section 3 is all about.
Non-resident but found in the Philippines;
b)
2.)
EXAMPLE: A young child was abandoned by his illegitimate father.

The illegitimate father left the Philippines for good. The son wants
to file a case against the father for compulsory recognition, at least
to improve his status.
Q: Can I sue the non-resident defendant?
a)
The action affects the personal status of the plaintiff

and venue is the place where the plaiantiff resides; or
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
EXAMPLE: He is there but he is the owner of a piece of land here. I

want to file a case to recover ownership over the land here in the
Philippines.
1)
1.)
But if the action is purely in personam, then there is no way by

which you can sue him. Example is an action to collect an unpaid
loan.
for personal actions, where the plaintiff resides or

where he may be found at the election of the
plaintiff;
for real actions, where the property is located.
Q: Where is now the proper venue of the action against the nonresidents?
Non-resident not found in the Philippines
103

A: The law says where the plaintiff resides action which affects
the personal status of defendants, where the property of the
defendant located here in the Philippines
While the first two rarely pose a problem, the third has been a
source of controversy in the past.
A stipulation that any suit arising from this contract shall be filed
only in Quezon City is exclusive in character and is clear enough to
preclude the filing of the case in any other place. In this case, the
residences of the parties are not to be considered in determining
the venue of the action.
Sec. 4. When rule not applicable. - This rule shall not apply a)In those cases where a specific rule or law
provides otherwise; or
b)Where the parties have validly agreed in writing
before the filing of the action on the exclusive
venue thereof. (3a, 5a)
How about a stipulation that the parties agree to sue and be sued
in the courts of Manila?
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES

OTHERWISE;
POLYTRADE CORP. vs. BLANCO 30 SCRA 187
Q: What cases provide for venue of the action which may be

different from what Rule 4 says?
FACTS: C and J are both residing here in Cebu City. J borrowed

money from C, and executed a promissory note in favor of the
latter which says, I promise to pay C the sum of P200,000
one year from today. In case of a suit arising from this
promissory note, the parties agree to sue and be sued in the
City of Manila.
A: The following:
1.)
A civil action arising from LIBEL under Article 360 of the

Revised Penal Code.
When the note matured, J did not pay so C filed a case to

collect the unpaid loan here in Cebu City but J challenged the
venue on ground that the venue is agreed upon which is
Manila. According to C, the venue is correct because both of
us are residing here in Cebu City and under Rule 4, the venue
is where I reside or you reside, at my option.
Libel could give rise to a civil action for

damages. It is considered under the RPC as
one of the independent civil actions. The
criminal action for libel shall be filed
simultaneously or separately in the RTC of the:
a.)
b.)
province or city where the libelous article is

printed and first published; or
where any of the offended parties actually
resides at the time of the commission of the
offense.
ISSUE: Who is correct in this case?

HELD: Plaintiff is correct notwithstanding the stipulation.
Why? When. the parties stipulated on the venue of the civil
action, other than those found in the Rule of Court, the
stipulated venue is considered merely as an ADDITION to
where the parties reside. Unless the stipulation contains
RESTRICTIVE words which shows the intention of the parties
to limit the place stipulated as the exclusive venue.
If one of the offended party is a public officer, whose

office is in the City of Manila at the time of the
commission of the offense, the action shall be filed (a) in
the RTC of Manila, or (b) in the RTC of the province
where he held office at the time of the commission of
the offense.
2.)
So in the second exception where there is an agreement in writing

on the exclusive venue, the word exclusive is very important as
taken in the ruling in POLYTRADE vs. BLANCO. So if the venue is not
exclusive, Rule 4 still applies and the stipulated venue is just an
additional one.
Section 5 (4), Article VIII, 1987 Constitution The SC may

order a change of venue or place of trial to avoid a
miscarriage of justice as what happened in the case of
Mayor Sanchez.
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING

BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE
THEREOF.
Of course, there are stipulations where you can see clearly the
intention of the parties to limit the venue. But sometimes, there
are stipulations in which it is difficult to decipher the real intention
of the parties whether exclusive or not. Examples of clear
stipulations which calls for the application of the POLYTRADE
ruling: in the City of Manila only or the suit shall be filed in the City
of Manila and in no other place.
The parties may agree on a specific venue which could be in a place

where neither of them resides. Take note that the stipulation must
be:
1)
2)
3)
in writing;
made before the filing of the action and
exclusive as to the venue.
The Polytrade doctrine was further applied in the case of

Unimasters Conglomeration Inc. v. CA 267 SCRA 759. In this case, it
was ruled that a stipulation stating that all suits arising out of this
Agreement shall be filed with/in the proper courts of Quezon City,
104

is only permissive and does not limit the venue to the Quezon City
courts. As explained the said case:
In other words, unless the parties made very clear, by employing
categorical and suitably limiting language, that they wish the venue
of the actions between them to be laid only and exclusively at a
definite place, and to disregard 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.xxxThere must be, to repeat, 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.
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. (Phil. Bank of Communications v. Trazo, GR
165500, Sug. 30, 2006)
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. UCPB GR 139427, Dec. 8, 2000)
d.
All court litigation procedures shall be conducted in the

appropriate courts of Valenzuela City, Metro Manila
(Auction in Malinta, inc. v. Luyaben GR 173979, Feb. 12,
2007)
Examples of words with restrictive meanings are: xxx 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, GR 166920 Feb. 19, 2007)
However, there are cases in which you cannot find the word
exclusive or the word only, and yet the SC said it seems the
intention of the parties to limit the venue as exclusive as what
happened in the 1994 case of
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 are deemed superseded by current decisions on venue.
GESMUNDO vs. JRB REALTY CORP 234 SCRA 153

FACTS: This involves a lease contract which contain a
stipulation on venue. Here is the language of the lease
contract: venue for all suits, whether for breach hereof or
damages or any cause between the LESSOR and the LESSEE,
and persons claiming under each, being the courts of
appropriate jurisdiction in Pasay City
In Supena v. de la Rosa 334 Phil. 671, it was ruled that Hoechst had
been rendered obsolete by recent jurisprudence applying the
doctrine enunciated in Polytrade (Auction in Malinta Inc. v.
Luyaben)
This conflict was resolved in the case of PHIL. BANKING vs.
TENSUAN (228 SCRA 385) where the SC ruled that the ruling in
BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been
rendered obsolete by the POLYTRADE ruling and subsequent cases
reiterated it. So the ruling in POLYTRADE is the correct ruling.
Forget what the SC said in the abovementioned two cases.
In other words, if there is a case, they agreed to file it in the

court of Pasay City.
ISSUE: Is this intention of the parties to make Pasay City an
exclusive venue?
HELD: Pasay City is the exclusive venue. It is true that in
Polytrade Corporation v. Blanco, a stipulation that The
parties agree to sue and be sued in the City of Manila was
held to merely provide an additional forum in the absence of
any qualifying or restrictive words. But here, by laying in Pasay
City the venue for all suits, the parties made it plain that in no
other place may they bring suit against each other for breach
contract or damages or any other cause between them and
persons claiming under each of them. In other words, the
intention of the parties is to make Pasay City the exclusive
venue.
When stipulation would be contrary to public policy of making

courts accessible to all who may have need of their service
SWEET LINES vs. TEVES 83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet

Lines, a shipping company with the head office in Cebu. The
respondent Teves is the former City Fiscal of Davao City,
former Mayor and became judge of CFI of Cagayan de Oro
City.
The following stipulations were likewise treated as merely

permissive and did not limit the venue:
a.
b.
There was a group of passenger who rode on the Sweet Lines

bound for Cebu City. During the trip, they were given a crude
treatment by the officers of the vessel. When they came back
in Cagayan de Oro City, they filed a suit for damages against
Sweet Lines. They file the case in the former CFI, now RTC, of
xxxThe agreed venue for such action is Makati, Metro

Manila, Philippines (Mangila v. CA 435 Phil. 870).
105

Cagayan de Oro City because the plaintiffs are residents of

Cagayan de Oro City.
Upon his return to Cagayan, he filed an action for damages

against RCPI. But in the RCPI telegraph form, there is a
stipulation that venue of any action shall be the court of
Quezon City alone and in no other courts. So the venue is
restrictive and RCPI filed a motion to dismiss citing as ground
improper venue.
Sweet Lines filed a motion to dismiss questioning the venue of

the action because in the ticket issued by Sweet Lines, it is
stipulated that in case of a civil action arising from the
contract of carriage, the venue of the action shall be the City
of Cebu ONLY and in no other place. So there is a restrictive
word. Obviously the lawyers of Sweet Lines knew about
Polytrade because they moved to dismiss the case citing this
case.
The trial court granted the motion. Arquero went to the SC

citing the case of SWEET LINES where despite the fact of a
restrictive stipulation, SC refused to apply the POLYTRADE
ruling.
Judge Teves denied the motion to dismiss the case despite the
stipulation. According to him, it is unfair. If I will dismiss the
case based on this stipulation, the aggrieved parties will be
discouraged in going to Cebu. It is very expensive and they will
be inconvenienced. But, if the case will go on in Cagayan de
Oro, it will not inconvenienced Sweet Lines because they have
their branch office, their manager and their own lawyer.
HELD: The ruling in Sweet Lines vs. Teves does not apply. You
are bound by the stipulation. Why? You are a lawyer so you
klnow the implication of the stipulation signed.
Q: Distinguish JURISDICTION from VENUE.
1)
ISSUE: Whether or not Cagayan de Oro is the proper venue.

HELD: YES. Judge Teves was correct in not dismissing the case.
JURISDICTION refers to the authority of the court to

hear the case, whereas
VENUE refers only to the place where the action is
to be heard or tried;
First of all, the stipulation is placed in the ticket. These people

never even bothered to read this. Nakalagay na iyan diyan eh.
So either you take it or you leave it. Therefore, the passengers
did not have a hand in preparing that stipulation. So the
contract is a contract of adhesion.
2)
JURISDICTION over the subject matter cannot he

waived; whereas
VENUE is waivable and can be subject of agreement;
3)
Second, again for the sake of equity, to be fair that these poor
people will be compelled to go to Cebu to file a case there.
They will be discouraged. It is very expensive to go back and
forth to Cebu. Whereas, Sweet Lines has the resources, the
means, the lawyers here in Cagayan to litigate. Therefore, it
would be inequitable to compel them or to apply the
stipulation there.
JURISDICTION is governed by substantive law

Judiciary Law, BP 129; whereas
VENUE is governed by procedural law Rule 4 of the
Rules of Court;
4)
JURISDICTION establishes a relation between the

court and the subject matter; whereas
VENUE creates a relation between the plaintiff and
defendant, or petitioner and respondent; and
The ruling in SWEET LINES is an exception to POLYTRADE despite

the exclusive stipulation. The SC said that the refusal of the court to
apply it is correct. There is no grave abuse of discretion on the part
of Judge Teves.
5)
ARQUERO vs. FLOJO 168 SCRA 54
JURISDICTION or lack of it over the subject matter

is a ground for a motu proprio dismissal; whereas
VENUE is not except in cases subject to summary
procedure.
FACTS: Arquero here is lawyer and the municipal mayor of the

municipality of Sta. Teresita, Cagayan Valley. He sent a
telegram through the RCPI branch in Cagayan addressed to a
Congressman in stating: I will go there to Manila, I will see
you in your office on this particular date.
BAR QUESTION: State in what instance the jurisdiction and venue

coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial

jurisdiction. But in civil cases, jurisdiction and venue are two
different things. They do not coincide.
When he went to the office of the congressman after a few

days, who was mad at him telling him So you are here to ask
for a favor for your own but your telegram was charged
collect! Arquero was stunned and embarrassed because he
paid for the telegram.
106

Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure The

procedure in Municipal Trial Courts shall be
the same as in the Regional Trial Courts,
except (a) where a particular provision
expressly or impliedly applies only to either
of said courts, or (b) in civil cases governed by
the Rule on Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject
matter is procedure in Regional Trial Courts. However, by express
provisions in Section 1, the procedure in the Regional Trial Court
and the procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also
applicable to the MTC except when a particular provision expressly
applies only to either of said courts.
There are provisions where it is very clear and intended only to
apply to RTC or MTC. A good example of this is paragraph (a) is Rule
40 which governs appeals from MTC to RTC. It is only applicable to
MTC. It does not apply to appeals from RTC to Court of Appeals.
The second example would be in civil cases governed by Rules on
Summary Procedure. That would be the last law that we will take
up. Rules on Summary Procedure applied only to MTC. They do not
apply to RTC.
Sec. 2 Meaning of Terms. The term
Municipal Trial Courts as used in these
Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal
Trial Court, and Municipal Circuit Trial Courts.
(1a)
In our structure, we already illustrated the hierarchy of courts.
Metropolitan Trial Courts are only in Manila. Municipal Trial Courts
are in cities and municipalities. When the Rule says Municipal Trial
Court, it already includes Metropolitan Trial Courts, MTCC, MCTC.
So that we will not be repetitious.
107

PROCEDURE IN THE REGIONAL TRIAL COURTS

Rule 6
statements or admissions made in his pleading and cannot be

permitted to take a contradictory position. (Santiago v. de los
Santos 61 SCRA 146)
KINDS OF PLEADINGS
Construction of ambiguous allegations in pleadings
SECTION 1. Pleadings Defined. Pleadings are

the written statements of the respective
claims and defenses of the parties submitted
to the court for appropriate judgment. (1a)
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 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 pleaders peril. (61 Am Jur, Pleading)
Q: Define pleadings
A: PLEADINGS are the written statements of the respective claims
and defenses of the parties submitted to the court for appropriate
judgment. (Section 1) Under the Rules, pleadings cannot be oral
because they are clearly described as written statements.
System of pleading in the Philippines

The system is the Code Pleading following the system observed in
some states of the US like California and New York. This system is
based on codified rules or written set of procedure as distinguished
from common laws procedure. (Marquez and Gutierrez Lora v.
Varela, 92 Phil. 373)
This is the document where a party will state his claim against the
defendant; or where the defendant will state also his defense.
Pleadings merely tell a story. You tell your story there, the other
party will tell his story.
Sec. 2 Pleadings allowed The claims of a

party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.)
party complaint, or complaint-inintervention.
Necessity and purpose of pleadings

1)
2)
3)
Pleadings are necessary to invoke the jurisdiction of the

court (71 C.J.S. Pleadings). 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 the 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.
The defenses of a party are alleged in the

answer to the pleading asserting a claim
against him.
An answer may be responded to by a reply.
(n)
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).
Section 2 tells us what pleadings are allowed by the Rules of Court.

In a civil case, there are actually two (2) contending parties:
Pleadings are designed to present, define and narrow

the issues, to limit the proof to be submitted in the trial,
to advise the court and the adverse party of the issues
and what are relied upon as the causes of action or
defense. (71 CJS)
1)
2)
the person suing or filing a claim; and

the person being sued or defending.
Q: If you are the claimant or the plaintiff, in what pleading do you

assert your claim?
The counterpart of pleadings in criminal procedure is information,

or the criminal complaint where a prosecutor will tell what crime
you are being accused what you did, time, the victim, etc.
A: Complaint, counterclaim, cross-claim, third-party complaint or

fourth-party complaint, etc.
On the other hand, if you are the party sued, you also have to file
your pleading or your defense. It is known as the ANSWER. The
defenses of a party are alleged in the answer to the pleading
asserting a claim against him. If I file a complaint against you, in
response, you will file an answer.
Construction of pleadings
In this jurisdiction, all pleadings shall be liberally construed so as to
do substantial justice (Concrete Aggregate Corp. v. CA 266 SCRA
88). 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 intendment of the
pleader is the controlling factor in construing a pleading and should
be read in accordance with its substance, not its form.
In the last paragraph, an answer may be responded by a REPLY. I

file a complaint. You file an answer invoking your defenses. If I
want to respond to your defenses, I will file a REPLY.
COMPLAINT
While it is the rule that pleadings should be liberally construed, it

has also been ruled that a party is strictly bound by the allegations,
That is the pattern.
108
ANSWER
REPLY

Q: Summarizing all of them, what are the known pleadings

recognized by the law on Civil Procedure?
Q: Define complaint
A: COMPLAINT is the pleading where the plaintiff will allege his
cause or causes of action. A complaint is also called the INITIATORY
PLEADING because it is actually the first pleading filed in court. It is
the pleading that initiates the civil action.
A: There are seven (7) types of pleadings:

1)
2)
3)
4)
5)
6)
7)
Complaint;
Answer;
Counterclaim;
Cross-claim;
Reply
Third (Fourth, Fifth, etc.) Party Complaint;
Complaint-in-Intervention.
Rule 8 requires that it should contain a concise statement of the

ultimate facts constituting the plaintiff's cause of action not
evidentiary facts or legal conclusions.
Pleadings allowed under the Rules on Summary Procedure
Ultimate facts refer to the essential facts constituting the plaintiff's

cause of action.
Note however, that when a case falls under the Rules on Summary
Procedure, the only pleadings allowed to be filed are:
The fact is essential if it cannot be stricken out without leaving the

statement of the cause of action insufficient.
1)
2)
3)
4)
Test of sufficiency of the facts alleged in the complaint:
Complaint;
Compulsory Counterclaim;
Cross-claim pleaded in the Answer; and
Answers thereto (Sec. 3 [A]II, Rules on Summary
Procedure)
Determine whether upon the averment of facts, a valid judgment

may be properly rendered.
What are not ultimate facts:
Permissive Counterclaims, third-party complaints, reply and

pleadings-in-intervention are prohibited. (Sec. 9, IV)
1)
2)
Pleading and motion

1.)
2.)
4)
a pleading may be initiatory like a complaint while a

motion can never be such as it is filed in a case that is
already pending in court;
3.)
A pleading is always filed before judgment while a

motion may be filed after judgment;
4.)
There are only 9 kinds of pleadings while any application

for a relief other a judgment can be made in a motion'
however, there are only three motions which actually
seek judgment namely:
a)
b)
c)
5.)
3)
the purpose of a pleading is to submit a claim or defense

for appropriate judgment while the purpose of a motion
is to apply for an order not included in the judgment;
evidentiary or immaterial facts;

legal conclusions, conclusions or inferences of facts from
facts not stated, or incorrect inferences or conclusions
from facts stated;
the details of probative matter or particulars of
evidence, statements of law, inferences and arguments;
an allegation that a contract is valid or void is a mere
conclusion of law.
For EXAMPLE: Mr. P wants to sue Mr. R to collect an unpaid loan.

Mr. R borrowed money from Mr. P and refused to pay. Normally, it
starts with an introduction: Plaintiff, through counsel, respectfully
alleges that Then it is followed by paragraphs which are
numbered. For instance:
Illustration:
1)
Plaintiff Mr. P, of legal age, is a resident of 79 P. del

Rosario St., Cebu City; whereas defendant Mr. R
also of legal age, is a resident of 29 Pelaez St. Cebu
City where summons and other processes of this
court may be served;
2)
On Nov. 7, 2008, defendant secured a loan from

plaintiff in the sum of P30,000.00 payable within
one (1) year form said date with legal interest;
3)
The account is already due and despite repeated

demands, defendant failed and refused to pay;
a motion for judgment on the pleadings (R 34);

a motion for summary judgment (R 35);
Demurrer to Evidence
a pleading must be written while a motion may be oral

when made in open court or in the course of a hearing or
trial.
A.) COMPLAINT
Sec. 3. Complaint The complaint is the
pleading alleging the plaintiffs cause or
causes of action. The names and residences
of the plaintiff and defendant must be stated
in the complaint.
PRAYER
WHEREFORE, it is respectfully prayed that judgment be
rendered against the defendant ordering him to pay the loan
of P30,000.00 and interest in favor of the plaintiff.
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.
109

Your allegations must contain the four (4) elements of a Cause of

Action the Right, the Obligation, the Delict or Wrong or Violation
of Your Right, and the Damage.
A: Paragraph [a]: Briefly, it is a defense of specific denial where you

deny the statement in the complaint and you state the facts and
the reason/s on which your denial is based. In a negative defense,
the defendant specifically denies a material fact or facts alleged in
the pleading of the claimant essential to his cause of action.
B.) ANSWER
Sec. 4 Answer An answer is a pleading in
which a defending party sets forth his
defenses. (4a)
EXAMPLE: The complaint says in paragraph 2, On November 6,

2008, defendant secured a loan from plaintiff in the amount of
P30,000.00 payable one (1) year from November 6,2008.
Q: What is the pleading where you respond?
The defendant will say in his answer:
A: It is called the ANSWER. That is where you will state your

defenses. That is why an ANSWER is called a Responsive Pleading.
Defendant specifically denies the allegation in

Paragraph 2 of the complaint. The truth of the
matter being that he never secured any loan from
plaintiff because he does not even know the
plaintiff and he did not see his face before.
Q: Why is it called Responsive Pleading?

A: Because it is the pleading which is filed in response to the
complaint or a pleading containing a claim. It is where you respond
to the cause of action. That is where you state your defenses.
That is a negative defense. You said I borrowed money from you.

No, I dont even know you. I have not seen you before. He
denies the existence of the loan. That is known as the negative
defense. It is a denial of a material fact which constitutes the
plaintiffs cause of action. Thats why it is briefly called a Defense
of Specific Denial.
So you can file an answer to the complaint; answer to the

counterclaim, answer to the cross-claim, etc.
It is something which is not found in Criminal Procedure.
Insufficient denial or denial amounting to admissions:

Q: If you are charged with a crime, how do you answer?
1.
2.
A: By pleading guilty or not guilty. That is the answer. When you

plead guilty, and the offense is not punishable by reclusion
perpetua to death it is the end.
General denial; and

denial in the form of negative pregnant
Negative pregnant is a denial in such form as to imply or express

an admission of the substantial fact which apparently is
controverted. It is form of denial which really admits the important
facts contained in the allegations to which it relates.
There is no writing of defenses, no written answer in criminal

cases. It (pleadings) only applies to civil cases where you allege
your defenses.
While it is a denial in form, its substance actually has the effect of

an admission because of a too literal denial of the allegations
sought to be denied. This arises when the pleader merely repeats
the allegations in a negative form.
Q: What are the defenses under the Rules?

A: That is Section 5.
In the example above, when the answer states:
Sec. 5 Defenses Defenses may either be

negative or affirmative.
"The defendant did not secure a loan from the plaintiff on Nov. 6,
2008 in the amount of P30,000.00 payable within one year."
A NEGATIVE DEFENSE is the specific denial

of the material fact or facts alleged in the
pleading of the claimant essential to his
cause or causes of action.
b.) Answer; AFFIRMATIVE DEFENSES

Q: Define an AFFIRMATIVE defense.
An AFFIRMATIVE DEFENSE is an allegation

of a new matter which, while hypothetically
admitting the material allegations in the
pleading of the claimant, would nevertheless
prevent or bar recovery by him.
A: In paragraph (b), it is briefly called a defense of confession and

avoidance because, while the defendant may admit the material
allegation in the complaint, however, he will plead a new matter
which will prevent a recovery by the plaintiff. I admit what you are
saying in the complaint but still you are not entitled to recover
from me.
Defenses may either be negative or affirmative.
EXAMPLE: Defendant may say: Defendant admits the allegation in

par. 2 of the Complaint, but alleges that the action has prescribed.
b.) Answer; NEGATIVE DEFENSES;

Q: Define a NEGATIVE defense.
110

He confesses to having borrowed money but avoids liability by

asserting prescription.
Therefore, there is one civil case but there are two (2) causes
involved the main cause of action in the complaint and that in the
counterclaim. There are two (2) issues to be resolved by the court.
Examples of affirmative defenses are: fraud, statute of limitations,

release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance.
Q: If your complaint against me is to recover a sum of money,

should my counterclaim also involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be
similar in nature. (De Borja vs. De Borja, 101 Phil. 911) It is possible
for you to file case for recovery of a piece of land and my
counterclaim is recovery of damages arising from a vehicular
accident.
Suppose, you sue me for damages arising from breach

of contract. I admit I entered into a contract but I have
no obligation to comply because the contract is null and
void. Or, the contract is illegal. Or, the stipulation is
contrary to public policy, therefore, I am not bound. I
admit what you say but I am not liable because of the
illegality of the subject matter of the contract.
Q: Suppose your claim against me is One (1) Million, is it possible

that my counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same
amount you are claiming. A counterclaim need not diminish or
defeat the recovery sought by the opposing party, but may claim
relief exceeding in amount or different in kind from that sought by
the opposing party. (De Borja vs. De Borja, 101 Phil. 911)
Or, you sue me because according to you, I entered into a contract

and I refused to comply. So, you file a case against me for specific
performance or for damages. Then I say: Its true that I entered
into a contract with you. Its true I did not comply. But there is
nothing you can do because the contract is oral and the contract is
covered by the statute of frauds. In order to be enforceable, we
should have reduced it into writing. Since we never reduced it into
writing, I am not bound to comply.
Q: You file a case against me for recovery of unpaid loan. My

counterclaim is, rescission of partnership contract.
Is the
counterclaim proper?
c.) COUNTERCLAIMS
A: Yes although there is no connection between what you are

asking and what my answer is. But what is important is that we are
the same parties. If you will not allow me to file my counterclaim
against you, that will be another case in the future. So to avoid
multiplying suits, clogging the dockets of the court and making the
proceedings more expensive, violating the purpose of the rules, the
parties are allowed to include all their claims against each other in
one case.
Sec. 6. Counterclaim. - A counterclaim is any

claim which a defending party may have
against an opposing party. (6a)
EXAMPLE: You file a case against me for damage to your car.
According to you in your complaint, while you were driving your car
along the highway carefully, I came along driving recklessly and
bumped your car causing damages amounting to P50,000.00 for
repair. Your allegation is based on negligence on my part.
Same capacity rule

DE BORJA vs. DE BORJA - 101 Phil 911
My answer is denial: That is not true! I deny that! I was the one
driving carefully and you were driving carelessly and negligently.
Therefore, if you are the proximate cause of the accident, Im not
liable for the damage of your car. Thats my answer Im not
liable because you are negligent. Because you were the one
negligent, my car was also damaged. I am not liable for the damage
on your car. As a matter of fact, you are the one that should be
held liable to pay for the damage of my car. I am now claiming for
the damage of P50,000.00. That is called COUNTERCLAIM.
FACTS: A died, of course, what survives after that is the

estate. X was appointed as administrator or legal
representative. W owes a sum of money to the estate of A
and X filed a case against W to collect the unpaid loan. X is
called the REPRESENTATIVE PARTY under Rule 3, Section 3. W
filed an answer and stated that W has a claim against X. W
filed a counterclaim against X in the case.
Nature of a counterclaim
HELD: The counterclaim is improper. When X sued W, X is not

suing in his own personal capacity. He is acting as
administrator of the estate of A. The real plaintiff is the estate
of A. X is just the legal representative. Therefore, you cannot
file a counterclaim against X in the latters personal capacity
when X is suing W in a representative capacity.
A counterclaim is in the nature of a cross-complaint. Although it

may be alleged in the answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the original complaint.
For this this reason it is to be answered within ten (10) days from
service.
The SC said that the plaintiff should be sued in a counterclaim in

the SAME CAPACITY that he is suing the defendant. Thats a
principle to remember.
According to a lawyer who is fluent in Cebuano, he called it balos.

He was explaining to his client that they have counterclaim.
111

PERMISSIVE & COMPULSORY

COUNTERCLAIMS
Q: What happens if one of these requisites is missing?

A: If one of the five requisites is missing, the counterclaim is
permissive in nature.
Sec. 7 Compulsory counterclaim A

compulsory counterclaim is one which, being
cognizable by the regular courts of justice,
arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing partys claim
and does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction
of the court both as to the amount and the
nature thereof, except that in the original
action before the Regional Trial Court, the
counterclaim may be considered compulsory.
Discussion of the elements

First Element: A COUNTERCLAIM TO BE COMPULSORY MUST
BE COGNIZABLE BY THE REGULAR COURTS.
In other words, if you file a complaint against me and I have a
counterclaim against you in the Labor Code, then it cannot be
classified as a compulsory claim because how can I invoke against
you a claim which is cognizable by the NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A
TRANSACTION OR OCCURRENCE CONSTITUTING A SUBJECT
MATTER OF THE OPPOSING PARTYS CLAIM
The second requisite is the most important. A counterclaim, to be
compulsory, must arise out of or connected with the transaction or
occurrence constituting a subject matter of the opposing party
concerned. It must arise out of or is connected with a transaction
or occurrence constituting a subject matter of the opposing partys
claim. It must be logically related to the subject matter of the main
action.
Under the Rules, there are two types of counterclaim:

1)
2)
COMPULSORY COUNTERCLAIM and,

PERMISSIVE COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a

counterclaim compulsory and when is it permissive?
So the rule is, if the counterclaim did not arise out of or is not
connected with the transaction or occurrence constituting the
subject matter of the opposing partys concern, the counterclaim
must be permissive in nature.
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in

Section 7. If we will outline Section 7, we will see that a
counterclaim is compulsory if the following requisites are present:
1)
It is cognizable by the regular courts of justice;
2)
It arises out of or it is connected with a transaction or

occurrence constituting a subject matter of the opposing
partys claim;
3)
It does not require for its adjudication the presence of

third parties of whom the court cannot acquire
jurisdiction;
4)
It must be within the jurisdiction of the court, both as to

the amount and the nature thereof, except that in an
original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount; and
5)
PROBLEM: Emily filed a case against Regina for damages arising

from a vehicle collision. According to Emily, the case of the accident
is the negligence of the defendant in driving her car. Her car
bumped the car of Emily and was damaged. So, Emily is holding
Regina liable for the damage on her car. Regina denied that she
was negligent. According to Regina, No, I am not negligent. As a
matter of fact, you (Emily) were the one negligent, and because of
that negligence, my car was also damaged. So you should be the
one to pay damages.
Q: Is the counterclaim of Regina arising out of or is connected with
the transaction or occurrence constituting the subject matter of
the opposing party?
The defending party has a counterclaim at the time he

files his answer.
A: YES because we are talking of the same bumping. You bumped

my car, you say I bumped your car. So we are talking of the same
event or transaction.
The fifth requisite is not found in Section 7 but in Rule 11, Section
8:
PROBLEM: T files a case against me for recovery of a piece of land.

According to her, she is the owner of the land which Im occupying.
Now, I file my answer, and then I said, T, I spent a lot of money for
necessary expenses to preserve the land. You are also liable to
reimburse me for the expenses for the necessary improvements I
introduced on the land. Under the law on Property, a defendant
or possessor is entitled to reimbursement for necessary
improvements and expenses. So she is trying to recover the piece
Rule 11, Sec. 8. Existing counterclaim or crossclaim. - A compulsory counterclaim or a crossclaim that a defending party has at the time
he files his answer shall be contained therein.
(8a, R6)
Another way of saying it is, the counterclaim has already matured
at the time he files his answer. That is the fifth requisite.
112

of land, I am now asking her to reimburse me for all necessary

expenses that I spent on the land.
PROBLEM: V files a case against me for damages arising from

vehicular collision. Her car is damaged, my car is damaged. In my
answer, I denied negligence but I did not claim from her the
damage to my vehicle. After the trial, court found the plaintiff at
fault. So, the complaint of V. This time I will file a case against her
to recover damages for the damage to my car since I was able to
prove that she was negligent and not me.
Q: Is my counterclaim arising out of or connected with the subject

matter of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the
counterclaim is compulsory.
Q: What will happen to my case now?
PROBLEM: T files a case against me for recovery of a piece of land.

My counterclaim against her is damages arising from a vehicular
collision.
A: My case will be dismissed because I did not raise that cause of

action as a counterclaim as it is compulsory.
Q: Is my counterclaim arising out of a subject matter of your

action?
PROBLEM: A files a case against me for recovery of a piece of land.

After trial, the decision is against me. The court said that I should
return the land to her. I will file a case against her. She moved to
dismiss barred, because I should have raised that as a
counterclaim. I cannot file another case involving that cause of
action. That is the effect of failure to raise the compulsory
counterclaim in the case filed against you.
A: NO. It is completely different. Thus, that is a permissive

counterclaim.
MELITON vs. CA 216 SCRA 485
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. My

cause of action against her is damages arising against a vehicular
collision.
HELD: It has been postulated that while a number of criteria

have been advanced for the determination of whether the
counterclaim is compulsory or permissive, the one compelling
test of compulsoriness is the logical relationship between the
claim alleged in the complaint and that in the counterclaim,
that is, where conducting separate trials of the respective
claims of the parties would entail a substantial duplication of
effort and time, as where they involve many of the same
factual and/or legal issues.
Q: Is the counterclaim allowed?

A: Yes, allowed.
Q: My decision is not to file a counterclaim but to file another case
against her. Is that allowed?
Logical Relationship Test
A: Yes, that is allowed. Meaning, I may or may not raise it as a

counterclaim because it is permissive. I am permitted to raise it as
a counterclaim but I am not obliged. I may decide to file another
action against you. That is the importance between a compulsory
counterclaim and a permissive counterclaim.
The logical relationship test between the claim and the

counterclaim has been called: The one compelling test of
compulsoriness. Under this test, any claim a party has against an
opposing party that is logically related to the claim being asserted
by the opposing party, and that it is not within the exception to the
rule is a compulsory counterclaim. Its outstanding quality is
flexibility. (Tan v. Kaakbay Finance Corporation 404 SCRA 518)
Third Requisite: IT DOES NOT REQUIRE FOR ITS

ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM THE
COURT CANNOT ACQUIRE JURISDICTION.
Q: What is the importance of determining whether the claim is

compulsory or permissive?
Meaning, if my counterclaim against you will involve the presence

of an indispensable party who is, lets say, abroad, and therefore,
the court cannot acquire jurisdiction over him, if I dont allege it as
counterclaim in my answer, I will not be barred from filing a
separate action.
A: A compulsory counterclaim must be invoked in the same action.

It cannot be the subject matter of a separate action. Unlike in
permissive counterclaim where you have the choice of invoking it
in the same case, or in a separate action, compulsory counterclaim
must be invoked in the same action otherwise it will be barred.
That is found in Rule 9, Section 2:
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE

JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND
NATURE THEREOF
Rule 9, Sec. 2. Compulsory counterclaim, or

cross-claim, not set up barred. - A compulsory
counter-claim or a cross-claim, not set up
shall be barred. (4a)
Rules:
1)
Let us try to apply that principle to the case cited.
113
A counterclaim before the MTC must be within the

jurisdiction of the said court, both as to the amount and
nature thereof.

2)
In an original action before the RTC, the counterclaim

may be considered compulsory regardless of the
amount.
3)
However, the nature of the action is always material

such that unlawful detainer cannot be set up in the RTC.
4)
Q: Should the defendant raise that as a counterclaim in the accion

publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction of
the MTC. This time, the amount for the counterclaim is below the
jurisdiction of the RTC. So the RTC can claim jurisdiction.
If a counterclaim is filed in the MTC in excess of its

jurisdictional amount, the excess is considered waived
(Agustin v. Bacalan GR No. 46000, March 18, 1985)
Q: How can the RTC try a counterclaim when the claim is only
P50,000?
In Calo v. Ajax In'tl GR No. 22485, March 16, 1968, the remedy
where a counterclaim is beyond the jurisdiction of the MTC is to set
off the claims and file a separate action to collect the balance.
A: It is in accordance with the exception under Section 7: except

that in an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount. This means that
the main action is accion publicianaRTC. The counterclaim is
reimbursement for necessary expenses with arose out of the same
land. Normally, the RTC cannot try that but the answer to this
question is YES.
Q: I will file a case against you for forcible entry. I want to recover a
piece of land. Where is the jurisdiction of that case?
A: MTC.
Review: In the Law on Property, even if you are a possessor in bad
faith, you are entitled to reimbursement for necessary expenses.
The theory there is, even if he is a possessor in bad faith, the
expenses redounded to the benefit of the land owner. Anyway, you
will spend them just the same as the land owner will have to spend
for them. So it will not be fair if he is not reimbursed. Thats our
premise.
The RTC can award a claim for damages even though the claim is
below its jurisdiction. The principle is: Since the counterclaim is
compulsory, jurisdiction over the main action automatically carries
with it jurisdiction over the compulsory counterclaim. The
compulsory counterclaim is merely incidental to the main action.
Jurisdiction of the RTC over the main action necessarily carries with
it jurisdiction over the compulsory counterclaim which is merely
ancillary.
PROBLEM: Now, the defendant would like to claim for

reimbursement for the necessary expenses that he spent in my lot.
The case I filed against you is forcible entry in the MTC. Your
necessary expenses amount to P350,000.
If the main action is with the MTC, it cannot try the counterclaim
with the RTC. It is beyond its jurisdiction. It is not covered by the
exception. But if it is the main action which is within the jurisdiction
of the RTC, it can try a counterclaim which is below its jurisdiction
provided it arose out or is connected with the transaction.
Q: Should you raise it as a compulsory counterclaim in the forcible

entry case?
A: NO.
That exception is not written in the prior rules but it is a recognized

exception laid down by the SC which is now written down in the
law. In the case of
Q: Does it arise out of or connected with the transaction which is

the subject matter of the main action? Why not compulsory?
MACEDA vs. CA 176 SCRA 440
A: Because the MTC has no jurisdiction over the P350,000 amount

for the necessary expenses. This time, that is the missing element.
HELD: The jurisdiction of the MTC in a civil action for sum of

money is limited to a demand that does not exceed P100,000
(now P300,000) exclusive of interest and costs. A
counterclaim beyond its jurisdiction and limit may be pleaded
only by way of defense to weaken the plaintiffs claim, but not
to obtain affirmative relief.
Q: How will the defendant claim reimbursement?

A: He has to file with the RTC a case for reimbursement. He cannot
use that as a counterclaim for the forcible entry case because the
MTC has no jurisdiction on a counterclaim where the amount is
over P300,000.00.
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT

THE TIME HE FILES HIS ANSWER
I will reverse the problem:

PROBLEM: The plaintiff filed against the defendant an action for
accion publiciana recovery for a piece of land where the value of
the property is P1 million. So the case should be filed in the RTC.
Now, the defendant is claiming for the reimbursement of the
improvements thereon (necessary expenses) amounting to
P50,000.
How can I make a claim against you which is not yet existing? Even
if all the other requisites are present, the counterclaim would still
not be compulsory because how can one invoke something now
which he can acquire in the future?
114

So, those are the five essential elements. You remove one, the
counterclaim becomes permissive.
counterclaim, he must choose only one remedy. If he decides to file

a motion to dismiss, he cannot set up his counterclaim. But if he
opts to set up his counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer.
Q: Again. What is the importance of distinguishing whether the

counterclaim is compulsory or permissive?
COUNTERCLAIMS IN CRIMINAL CASES

A: If the counterclaim is compulsory, the defendant is obliged
under the law to raise it as a counterclaim in the action where he is
being sued. If he fails to invoke it, it is barred forever (Rule 9
Section 2).
JAVIER vs. IAC 171 SCRA 605

FACTS: The Javier spouses filed a criminal case against Leon
Gutierrez Jr, under BP 22 or the Bouncing Check Law, for
issuing a bad check. The criminal case was filed before the RTC
of Makati. The complainants did not reserve the civil action.
The implication is that the claim for civil liability is deemed
instituted with the criminal case.
If the counterclaim is permissive, the defendant has a choice of

raising it as a counterclaim in the case filed against him or he may
decide to file another action against the plaintiff, raising it as his
cause of action. It is permitted but not obliged.
Gutierrez in turn filed a civil action for damages against the

Javier spouses in the RTC of Catarman, Northern Samar,
where he accused the spouses of having tricked him into
signing the check.
Compulsory and Permissive Counterclaim compared:

1)
2)
A compulsory counterclaim arises out of or is necessarily

connected with the transaction or occurrence that is the
subject matter of the other party's claim, while a
permissive counterclaim is not;
What happened now is that he was being criminally sued in

Makati but defending himself in Catarman, Northern Samar.
He is explaining in the Samar court what he should be doing in
the Makati court.
A compulsory counterclaim does not require for its

adjudication the presence of third parties of whom the
court cannot acquire jurisdiction while a permissive
counterclaim may require such;
3)
A compulsory counterclaim is barred it not set up in the

action, while a permissive counterclaim is not;
4)
A compulsory counterclaim need not be answered, no

default, while a permissive counterclaim must be
answered otherwise the defendant can be declared in
default.
HELD: The civil case in Samar should be dismissed. It must be

in the Makati court that Gutierrez, as accused in the criminal
charge of violation of BP 22, should explain why he issued the
bouncing check. He should explain that story in Makati and
not in Samar.
This should have been done in the form of a counterclaim for
damages for the alleged deception by the Javier spouses. In
fact, the counterclaim was compulsory and should have been
filed by Gutierrez upon the implied institution of the civil
action for damages in the criminal case.
A plaintiff who fails or chooses not to answer a compulsory

counterclaim may not be declared in default, principally because
the issues raised in the counterclaim are deemed automatically
joined by the allegations of the complaint (Gojo v. Goyala, GR No.
26768, Oct. 30, 1970)
What the SC is saying is, since the civil action for damages is
impliedly instituted in the criminal case, and he wants to hold you
liable for filing this case, he should file a counterclaim against you
in the criminal case. What is unique was that for the first time in
the Philippine Procedural Law, SC laid down the rule that there is
such thing as a counterclaim in a criminal case, because, normally,
counterclaims are only recognized in civil cases. But since the civil
action is deemed instituted in the criminal case, the accused can
file a counterclaim against the offended party in the criminal
action.
General Rule: A compulsory counterclaim not set up in the answer

is deemed barred.
Exceptions:
1.
if it is a counterclaim which either matured or was

acquired by a party after serving his answer. In this case
it may be pleaded by filing a supplemental answer or
pleading before judgment (Sec. 9 R 11);
2.
When a pleader fails to set-up a counterclaim through

oversight, inadvertence, excusable negligence, or when
justice requires, he may, by leave of court, set up the
counterclaim by amendment of the pleading before
judgment (Sec. 10, R 11).
The trouble in this ruling is that, it has been subjected to a lot of

criticisms by academicians professors of Remedial Law, authors
they criticized the ruling. It provokes more problems than answers.
A justice of the SC remarked, I think we made a mistake (privately
ba) in the Javier ruling. Kaya it was never repeated.
The SC, in 1997, had another chance to comment on Javier in the
case of
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
115

CABAERO vs. CANTOS - 271 SCRA 392
of a counterclaim therein. Such cross-claim

may include a claim that the party against
whom it is asserted is or may be liable to the
cross-claimant for all or part of a claim
asserted in the action against the crossclaimant.(7)
NOTE: Here, the Javier ruling was set aside.

HELD: The logic and cogency of Javier notwithstanding, some
reservations and concerns were voiced out by members of the
Court during the deliberations on the present case. These
were engendered by the obvious lacuna in the Rules of Court,
which contains no express provision for the adjudication of a
counterclaim in a civil action impliedly instituted in a criminal
case.
A cross claim is a claim by one party against a co-party. It may be a

claim by defendant against his co-defendant arising out of the
subject matter of the main action.
Examples:
By the foregoing discussion, we do not imply any fault in

Javier. The real problem lies in the absence of clear-cut rules
governing the prosecution of impliedly instituted civil actions
and the necessary consequences and implications thereof. For
this reason, the counter-claim of the accused cannot be tried
together with the criminal case because, as already discussed,
it will unnecessarily complicate and confuse the criminal
proceedings. Thus, the trial court should confine itself to the
criminal aspect and the possible civil liability of the accused
arising out of the crime. The counter-claim (and cross-claim or
third party complaint, if any) should be set aside or refused
cognizance without prejudice to their filing in separate
proceedings at the proper time.
In an action for damages against the judgment creditor

and the Sheriff for having sold real property of the
plaintiff, the Sheriff may file a cross-claim against the
judgment creditor for whatever amount he may be
adjudged to pay the plaintiff.
In an action against a co-signer of a promissory note one

of whom is merely an accommodation party, the latter
may file a cross-claim against the party accommodated
for whatever amount he may be adjudged to pay the
plaintiff.
J and P are solidary debtors for the sum of P100,000.00

because they signed a promissory note in favor of D to
collect the sum of P100,000.00. However, although J
signed the promissory note, he did not get a single
centavo. Everything went to P. Both of them are now
sued. According to J, Actually there is a possibility that I
will pay the P100,000 to Dean when actually I did not
even get a single centavo out of it. Everything went to
P! Therefore, J will now file a case against P where he
will allege that if J will be held liable to D, P will
reimburse him (J). So, J will also file a claim in the same
action against P.
At balance, until there are definitive rules of procedure to

govern the institution, prosecution and resolution of the civil
aspect and the consequences and implications thereof
impliedly instituted in a criminal case, trial courts should
limit their jurisdiction to the civil liability of the accused
arising from the criminal case.
This means SC admitted that the Javier doctrine put more problems
and confusions in the absence of specific rules. The counterclaim
should not be tried together in a criminal case. The trial court
should confine itself in the criminal action and that the
counterclaim should be set aside without prejudice to its right in
setting up actions in the civil action.
Now, the claim filed by J against his co-defendant P is

called a CROSS-CLAIM where J is called defendant in the
case filed by D and a cross-claimant against P. P is also
the defendant in the case filed by D and a crossdefendant with respect to the cross-claim filed by J. So
that is another case which a defendant is filing against
another defendant.
NOTE: The ruling in the case of CABAERO is now incorporated in

the last paragraph of Section 1, paragraph [a], Rule 111 of the 2000
Revised Criminal Procedure:
Limitations on Cross-Claim
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action.
1.
2.
3.
Must arise out of the subject matter of the complaint or

counterclaim;
Can be filed only against a co-party; and
Is proper only when the cross claimant stands to be
prejudiced by the filing of the action against him.
D.) CROSS-CLAIMS
Purpose: To settle in a single proceeding all the claims of the
different parties in the case against each other in order to avoid
multiplicity of suits (Republic vs. Paredes, GR No. L-12548, May 20,
1960).
Sec. 8. Cross-claim. A cross-claim is any claim

by one party against a co-party arising out of
the transaction or occurrence that is the
subject matter either of the original action or
116

Take note that the cross-claim of J against P is merely an off-shoot

of the case filed by D against J and P. Meaning, it arises out of the
same transaction or occurrence that is the subject matter of the
case filed by D against them.
cross-claim may arise either out of the original action or counterclaim therein.
EXAMPLE: J and P file a case against D. D files his answer with a
counterclaim against the plaintiffs J and P. So J and P will now
become defendants with respect to the counterclaim filed by D. So
J now can file a cross-claim against P arising out of the
counterclaim.
PROBLEM: Suppose D files a case against J and P to collect a

promissory note signed by J and P and J alleges in his cross claim,
Well, since we are already here, I also have a claim against P for
damages arising from a vehicular collision.
HYPOTHETICAL EXAMPLE:
Q: Is the cross-claim allowed in the problem?
1.)
A: NO. The cross-claim is improper. It has no connection with the
complaint of D against J and P. A counter-claim must always arise
out of a transaction or occurrence that is the subject matter of the
main action.
Mortz and Charles, plaintiffs, filed a case against Jet and

Pao, defendants. There are two plaintiffs suing two
different defendants on a promissory note. Both Jet and
Pao signed the promissory note in favor of Mortz and
Charles:
COMPLAINT (Collection case Main Action)
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSSCLAIM.
MORTZ and CHARLES, plaintiffs

-versus-

1)
JET and PAO, defendants
A COUNTERCLAIM is a complaint by the defendant

against the plaintiff, whereas,
2.)
A CROSS-CLAIM is a claim by a defendant against a

co-defendant;
2)
CROSS-CLAIM ON THE MAIN ACTION

Defendant JET, now cross-claimant
The life of the CROSS-CLAIM depends on the life of

the main action. A cross-claim is merely a
consequence of the case filed by the plaintiff
against the defendants. No main action, no crossclaim (RUIZ, JR. vs. CA, infra). Whereas,
-versusDefendant PAO, now cross-defendant
3.)
In a COUNTERCLAIM, you can kill the main action,

still the counterclaim survives.
3)
Now, according to Jet, every centavo of the loan went to

Pao. So Jet files a cross-claim against Pao:
A COUNTERCLAIM may be asserted whether or not

it arises out of the same transaction or occurrence
that is the subject matter of the action, whereas,
Jet also says, Actually I have a case against Mortz and

Charles because they entered my land and gathered
some of its product. So, he filed a counterclaim against
both Mortz and Charles. In the counter-claim of Jet, the
defendants are Mortz and Charles for the accounting of
the improvements on the land:
COUNTERCLAIM OF JET
A CROSS-CLAIM must always arise out of the same

transaction or occurrence that is the subject matter
of the action.
Defendant JET, now plaintiff

-versusPlaintiffs MORTZ and CHARLES, now co-defendants
Example: P case filed against J to collect a loan. J

files a COUNTERCLAIM against P to recover a piece
of land. That is allowed and that is a permissive
counterclaim. But suppose D files a case to collect a
loan against J and P. J files a CROSS-CLAIM against P
to recover a piece of land.
4.)
Mortz now will answer the counterclaim of Jet, Actually,

the damages on land was not caused by me but Charles.
So Mortz files a cross-claim against co-plaintiff Charles
arising out to the counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET
Q: Will it be allowed?
Plaintiff MORTZ, now cross-claimant
A: Not allowed! It has no connection with the

subject matter of the main action.
-versusPlaintiff CHARLES, now cross-defendant
Take note that a cross-claim is any claim by one party against a coparty arising out of the transaction of occurrence that is the subject
matter of the original action or of a counterclaim therein. So, a
117

5.)
6.)
Now, according to Pao, Actually last month, a car

owned by both of you (Mortz and Charles) bumped my
car and that my car was damaged. So, P filed a
counterclaim against Mortz and Charles for the damage
of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now defendants
But in a cross-claim, once the main action is dead, the cross-claim is

also automatically dead too. What is there to reimburse when the
complaint has been dismissed?
There is an opinion to the effect that the dismissal of the complaint
carries with it the dismissal of a cross-claim which is purely
defensive but not a cross claim seeking an affirmative relief.
If a cross-claim is not set up, it is barred: except
But Charles says, Im not the owner of the car but

Mortz. So he files a cross-claim against Mortz:
1)
when it is outside the jurisdiction of the court;
2)
if the court cannot acquire jurisdiction over third parties

whose presence is necessary for the adjudication of said
cross-claim. In which case, the cross-claim is considered
permissive;
3)
cross-claim that may mature or may be acquired after

service of the answer (Riano 2007, p. 285)
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO

Plaintiff CHARLES, now cross-claimant
-versusPlaintiff MORTZ, now cross-defendant
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
There are six (6) cases which are to be decided in the same action.
This rarely happens, but it is possible under the rules. The obvious
PURPOSE of these is to avoid multiplicity of suits and toward these
ends. According to the SC, the rules allow in a certain case and
even compel a petitioner to combine in one litigation these
conflicting claims most particularly when they arise out of the same
transaction. The rule does not only allow a permissive counterclaim
but the parties are even compelled to raise them in a compulsory
counter-claim.
Sec. 9. Counter-counterclaims and countercross-claims. A counterclaim may be asserted

against an original counter-claimant.
A cross-claim may also be filed against an
original cross-claimant.(n)
Section 9 is a new provision. There is such a thing as countercounterclaim and counter-cross-claim. The concept of countercounter-claim is not new. As a matter of fact, that was asked in the
bar years ago.
RUIZ, JR. vs. CA 212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a crossclaim against Pao. After a while, the case against Jet and Pao
was dismissed.
EXAMPLE: C filed against you an action to collect a loan. You filed a

counterclaim against her to recover a piece of land. Of course, she
has to answer your counterclaim. But she will say, Actually you
have been molesting me with your claim when actually you have
no right over my land. So, she files an injunction to stop you from
molesting her. In other words, based on your counter-claim against
her to recover my land, she will file a counterclaim to stop you
from molesting her. In effect, there is counterclaim to a
counterclaim.
ISSUE: What happens to the cross-claim of Jet against Pao?

HELD: When the main action was dismissed, the cross-action
must also be dismissed. The life of a cross-claim depends on
the life of the main action. If the main action is dismissed, the
cross-claim will have to be automatically dismissed.
COUNTER-CROSS-CLAIM
A cross-claim could not be the subject of independent

adjudication once it lost the nexus upon which its life
depended. The cross-claimants cannot claim more rights than
the plaintiffs themselves, on whose cause of action the crossclaim depended. The dismissal of the complaint divested the
cross-claimants of whatever appealable interest they might
have had before and also made the cross-claim itself no
longer viable
E.) REPLY
Sec. 10. Reply. A reply is a pleading, the office
or function of which is to deny, or allege facts
in denial or avoidance of new matters alleged
by way of defense in the answer and thereby
join or make issue as to such new matters. If
a party does not file such reply, all the new
matters alleged in the answer are deemed
controverted.
Whereas, the counterclaim can exist alone without the complaint.

EXAMPLE: Pao filed a case against Jet for the recovery of a piece of
land. Jets counterclaim is damages arising from a vehicular
accident. If the complaint is dismissed the counterclaim of Jet can
still remain alive even if the main action is dead.
If the plaintiff wishes to interpose any claims

arising out of the new matters so alleged,
118

such claims shall be set forth in an amended

or supplemental complaint.(11)
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and

REPLY.
ILLUSTRATION: Plaintiff files a complaint against a defendant to

collect an unpaid loan. D files his answer and raises a new matter,
affirmative defense. According to the defendant, the obligation is
already paid. Plaintiff said that you have paid the other loan. In
other words, the plaintiff would like to deny or dispute the
defendants affirmative defense of payment.
A: The following:
1)
A REPLY is a response to the defenses interposed by

the defendant in his answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a
cause of action by the defendant against the plaintiff;
Q: Can I file a pleading to dispute your defense?

2)
A: Yes, that pleading is called a REPLY.
The filing of an ANSWER TO A COUNTERCLAIM is

generally mandatory under Rule 11 because if the
plaintiff fails to file an answer to the counterclaim, he
will be declared in default on the counterclaim.
Q: How do you classify a reply?

A: It is a responsive pleading because it is the response of the
plaintiff to the affirmative defense raised in the defendants
answer.
OUTLINE OF FLOW OF PLEADINGS
An answer is a response to the complaint and the reply is a

response to the answer.
Q: Assuming that you would like to answer my reply, what
pleading would you file?
The filing of a REPLY is generally optional, whereas
PLAINTIFF
1.
DEFENDANT
Complaint
a.) Answer
2.
b.) Counterclaim
A: None. That is the last pleading. So, reply is considered as the

last pleading.
3.
Effect of failure to file a reply
4.
a.) Reply to answer

b.) Answer to counterclaim
Reply to answer to counterclaim
Q: Suppose I filed a complaint, you filed an answer invoking

payment. I failed to reply. What is the effect if the plaintiff fails to
reply? Is he admitting the correctness of the defense?
F. THIRD (FOURTH, ETC.) PARTY COMPLAINT

Sec. 11. Third, (fourth, etc.) - party complaint.
A third (fourth, etc.) party complaint is a
claim that a defending party may, with leave
of court, file against a person not a party to
the action, called the third (fourth, etc.) party
defendant, for contribution, indemnity,
subrogation or any other relief, in respect of
his opponent's claim. (12a)
A: No. As a general rule, the failure to file a reply has no effect.

Section 10 says that if a party does not file such reply, all the new
matters alleged in the answer are deemed controverted. Meaning,
all the affirmative defenses raised in the answers are automatically
denied.
So, whether you file a reply or not, the defenses are deemed
automatically disputed. The filing of a reply is OPTIONAL.
THIRD PARTY COMPLAINT is the procedure for bringing into a case

a third person who is not a party to the case.
Exceptions:
1)
2)
Where the answer is based on an actionable document

(Sec. 8 R 8); and
To set up affirmative defenses in the counterclaim
((Rosario vs. Martinez, GR No. L-4473, Sept. 30, 1952)
It 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 actually independent of and separate and distinct from
the plaintiffs complaint. Were it not for this provision of the Rules,
it would have to be filed independently and separately from the
original complaint by the defendant against the third party.
Note: Only allegations of usury in a Complaint to recover usurious

interest are deemed admitted if not denied under oath. Hence, if
the allegation of usury is contained in an answer it is not necessary
for the plaintiff to file a reply thereto in order to deny that
allegation under oath. (Regalado, p. 146)
A reply should not be confused with the answer to a counterclaim
which is also filed by the plaintiff.
119

The purpose of a third-party complaint is to enable a defending

party to obtain contribution, indemnity, subrogation or other relief
from a person not a party to the action.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the
injured party files an action for damages against Andrew only,
Andrew may file a third-party complaint against Carlo for
contribution, their liability being solidary (Article 2194, New Civil
Code)
EXAMPLE: A plaintiff files a case against a defendant to collect a

loan when there are two solidary debtors and one of them is
compelled to pay everything so that defendant will drag into the
picture the co-debtor for contribution or indemnity. If the two of
them were sued as defendants, all one has to do is to file a crossclaim against his co-defendant. BUT since only one is sued, the
remedy is to avail of Section 11.
INDEMNIFICATION
Example #1: Two people signed a promissory note in favor of the
creditor. But actually the entire amount went to you and none for
me. When the note fell due, I was the one sued. So I will file a
third-party complaint against you for indemnity. You have to
return to me every centavo that I will pay the creditor.
Take note that filing a third-party complaint is not a matter of right.

THERE MUST BE LEAVE OF COURT, unlike counterclaim or
cross-claim, where you do not need any motion or leave of court.
Example #2: A surety sued for recovery of debt by the creditor may
file a third-party complaint against the principal debtor for
indemnity. (Article 2047, New Civil Code)
There is a close relationship between a cross-claim and a thirdparty complaint because a cross-claim must arise out of the subject
matter of the main action. A third-party complaint must be also
related to the main action. It cannot be a cause of action which has
no relation to the main action.
SUBROGATION
Subrogation - You step into the shoes of someone else. Your
obligation is transferred to me.
EXAMPLE: The plaintiff files a case against the surety and the
principal debtor, so both of them are defendants, and the surety
seeks reimbursement for whatever amount he may be compelled
to pay the plaintiff. What kind of pleading would he file against his
co-defendant (the principal debtor)? CROSS-CLAIM.
EXAMPLE: Where a house is leased by a lessee and he subleased

the property to a third person who is now occupying the property.
In effect, the sub-lessee stepped into the shoes of the original
lessee. If the property is damaged and the lessor sues the lessee for
damages to his leased property, the lessee or sub-lessor can file a
third-party complaint and have the sub-lessee for subrogation
because actually, you stepped into the shoes when you occupied
the leased property. (Articles 1651 and 1654, New Civil Code)
BUT if the plaintiff files a case ONLY against the surety, because
anyway the principal debtor is not an indispensable party and the
surety would like to seek reimbursement from the person who
benefited from the loan, he cannot file a cross-claim against
anybody because he is the lone defendant. It is possible for him to
just file an answer. If he loses and pays the plaintiff, then he will file
another case against the principal debtor for reimbursement.
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS

CLAIM
EXAMPLE: When I buy the property of Mr. Cruz and after a while,
here comes Mr. Dee filing a case against me to claim ownership of
the land. But I bought it from Mr. Cruz who warranted that he is
the real owner. So I will now file third-party complaint against Mr.
Cruz to enforce his warranty warranty against eviction. (Article
1548, New Civil Code)
But if he wants everything to be resolved in the same case, what

kind of pleading will he file? He must resort a THIRD-PARTY
COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party
plaintiff to ask the third party defendant for:
1.)
2.)
3.)
4.)
Take note that there is always a connection between the main

complaint and the third-party complaint because the condition is
contribution, indemnification, subrogation and any other relief in
respect to your opponents claim. There is always a relation
between the third party-complaint and the main complaint against
you. Here is a bar question...
Contribution;
Indemnity;
Subrogation; or
any other relief in respect to the opponents claim.
CONTRIBUTION
BAR QUESTION: Janis files a case against Nudj to recover an unpaid

loan. Now the reason is that Carlo also owes Nudj. Nudj says, I
cannot pay you because there is a person who has also utang to
me. What I will pay you depends on his payment to me. File agad
si Nudj ng third-party complaint against Carlo. Is the third-party
complaint proper?
Example #1: Two debtors borrowed P100,000 from Janis (creditor)

and they shared the money 50-50. When the debt fell due, the
creditor filed a case against one of them. So, one of them is being
made to pay the P100,000. Not only his share but also his cosolidary debtor. So if I am the one liable when actually my real
liability is only 50,000. What will I do? I will file a third party
complaint against my co-debtor for contribution.
A: NO. There is no connection between the main action and the

3rd-party complaint the loan of Nudj to Janis and the loan of
120

Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa

utang ni Andrew kay Nudj? Not in respect to his opponents claim.
to plaintiffs (Roys) claim. Rudolph will be

liable to Roy for Roys claim against Eric
although the liability of Rudolph arises out of
another transaction (Sub-lease contract)
BAR QUESTION: How do you determine whether a 3rd-party

complaint is proper or improper? What are the tests to determine
its propriety?
3.
A: Case of
EXAMPLE: Tato is a registered owner of a car

and then sold it to Philip. Philip is the actual
owner. However, Philip did not register the
sale to the LTO. The registered owner is si
Tato lang gihapon although he is no longer the
real owner. While Philip was driving that car it
bumped the car of Lewee Tanduay. Lewee
researched the owner of the car at LTO and
ang lumabas ay si Tato. So ang ginawa ni
Lewee, ang kinasuhan nya ay si Tato na walang
malay...under the law, the registered owner is
liable.
Of course, when Tato got the
complaint, Wala akong alam sa sinasabi nyo,
that car is no longer mine. I sold that two
years ago, I have no idea what happened.
CAPAYAS vs. CFI 77 PHIL. 181

HELD: There are four (4) possible tests to determine the
propriety of a third-party complaint. In order for it to be
allowed, it must pass one of them. That is the reason when
you file it, you need the permission of the court to determine
whether it is proper or not and the original plaintiff may
object to the propriety of the third-party complaint.
There are the FOUR TESTS (any one will do):
1.
A third-party complaint is proper if it arises out of

the same transaction on which plaintiff is based, or
although arising out of another or different
transaction, is connected with the plaintiff's claim.
EXAMPLE: A creditor sued only one solidary
debtor. So you can file a third-party complaint
for contribution. Anyway, there is only one
loan and our liability arises out of the same
promissory note.
So obviously, Tato arrived at the conclusion

that si Philip and nakabangga. Tato filed a
third-party complaint against Philip because
he is the real owner. When Philip got the
third-party complaint, and because he knows
the story, in fact he was the one driving, ang
ginawa niya, nilabanan niya ng diretso si
Lewee. Meaning, instead of Tato fighting
Lewee, Philip fought Lewee directly. Frontal
na ba. Sabi ni Philip, I was not at fault, you
(Lewee) are at fault. So here is a situation
where Lewee sues Tato, Tato sues Philip but
Philip fights Lewee, as if he is the real
defendant, then the third party complaint
must be proper. It must be related.
(A third-party complaint is proper if the thirdpartys complaint, although arising out of

another transaction, is connected with the
plaintiffs claim.)
EXAMPLE: The car owner is sued for culpa
aquiliana for damages arising from vehicular
collision and he files a third-party complaint
against the insurance company for indemnity
based on the contract of insurance. So it is
connected with plaintiffs claim, and that is
precisely the purpose of my insurance
coverage.
2.
Whether the third party defendant may assert any

defense which the third party plaintiff has or may
have against plaintiffs claim.
Take note that there is a close similarity between a third-party

complaint and a cross-claim because as we have learned, a crossclaim must also be related to the same action.
Whether the third party defendant would be liable

to the original plaintiff or to the defendant for all
or part of the plaintiff's claim against the original
defendant. Although the third party defendant's
liability arises out of another transaction.
SAMALA vs. VICTOR 170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while

riding on a passenger jeep owned by Tato, the jeep was
bumped by the truck of Lewee, injuring Philip. Philip filed a
case for damages arising from breach of contract against Tato.
Tato filed a third-party complaint against Lewee. After trial,
the court found that Tato has not at fault. The fault is entirely
against Lewee . So the action against Tato was dismissed, but
the court held that Lewee be directly liable to Philip.
EXAMPLE: Sublease. Roy leased his property

to Eric. Eric subleased it to Rudolph. If Roys
property is damaged, Roy will sue Eric. But Eric
will also sue Rudolph. The sub-lessor has the
right to file a third-party complaint against the
sub-lessee for the damaged leased property
which is now occupied by the sub-lessee. The
third-party defendant Rudolph would be liable
121

It was questioned by Lewee. Lewee claims that is should be

Tato who is liable to Philip because Philip did not sue me
(Lewee), Bakit ako ang ma-liable hindi naman ako ang
dinemanda ni Philip? So procedurally, I am liable to Tato, Tato
is liable to Philip.
ISSUE: Whether or not the filing of a third-party complaint in a

criminal case is procedurally correct.
HELD: Yes, it is proper. There could be a third party complaint
in a criminal case because an offense causes two classes of
injuries the SOCIAL and the PERSONAL injury. In this case,
the civil aspect of the criminal case is deemed impliedly
instituted in the criminal case. Shafer may raise all defenses
available to him in so far as the criminal and civil aspects are
concerned. Shafers claim of indemnity against the insurance
company are also the claim by the victim in the criminal claim.
Therefore Shafers claim against the insurance company is
related to the criminal case. So similar to Javier that an
accused may also file a compulsory counterclaim in a criminal
case when there is no reservation.
ISSUE #1: Can Lewee, a third-party defendant, be held liable

directly to Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint,
normally Lewee is liable to Tato. But Lewee can be made
liable to Philip, or Lewee can be made liable to both Philip and
Tato because that is covered by the phrase OR ANY OTHER
RELIEF so broad that it cover a direct liability of a third
party defendant to the original plaintiff.
BUT in the light of the ruling in the case of
ISSUE #2: How can the court award damages to Philip based
on the theory of culpa aquiliana when his complaint is based
on culpa contractual? Can Lewee be held liable for culpacontractual?
CABAERO vs. CANTOS, supra

The SHAFER ruling has to be set aside for the meantime
because there is no such thing as third-party complaint in
criminal cases now. In other words, forget it in the meantime.
Also, forget counterclaims in criminal cases even if they arose
out of the main action.
HELD: YES. That is also possible because the primary purpose

of this rule is to avoid circuitry of action and to dispose of in
one litigation, the entire subject matter arising from a
particular set of fact it is immaterial that the third-party
plaintiff asserts a cause of action against the third party
defendant on a theory different from that asserted by the
plaintiff against the defendant. It has likewise been held that
a defendant in a contract action may join as third-party
defendants those liable to him in tort for the plaintiffs claim
against him or directly to the plaintiff.
This case refers to JAVIER on whether or not there is such a

thing as a compulsory counterclaim in criminal cases. SC said,
Huwag muna samok! If we will allow it in criminal cases it
will only complicate and confuse the case. The attention
might be divested to counterclaims or cross-claims or thirdparty complaints, etc.
Another interesting case which is to be compared with the

abovementioned case is the 1989 case of
HELD: The trial court should confine itself to the criminal

aspect and the possible civil liability of the accused arising out
of the crime. The counter-claim (and cross-claim or third party
complaint, if any) should be set aside or refused cognizance
without prejudice to their filing in separate proceedings at the
proper time.
SHEAFER vs. JUDGE OF RTC OF OLONGAPO 167 SCRA 386

NOTE: This case although it refers to third-party complaint is
related to criminal procedure. This is similar to the case of
JAVIER where the issue is, is there such a thing as a
counterclaim in a criminal case where the offended party did
not make a reservation. In SHAFER, is there such a thing as a
third-party complaint in a criminal case?
We will go to the old case of

REPUBLIC vs. CENTRAL SURETY CO 25 SCRA 641 [1968]
FACTS: Hannah filed a case against Rina for a liability
amounting to P350,000. So it was filed in RTC. Rina filed a
third-party complaint against ConCon Insurance Company for
indemnity insurance but the maximum insurance is only
P50,000. The insurance company moved to dismiss on the
ground that the court has no jurisdiction because third-party
complaint is only for P50,000 which is supposed to be within
the competence of the MTC.
FACTS: Shafer while driving his car covered by TPL, bumped

another car driven by T. T filed a criminal case against S for
physical injuries arising from reckless imprudence. T did not
make any reservation to file a separate civil action. So
obviously, the claim for civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party
complaint against the insurance company insofar as the civil
liability is concerned. The insurance company questioned the
propriety of d third-party complaint in a criminal case,
because according to the insurance company, the third-party
complaint is entirely different from the criminal liability.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party

complaint is only incidental. The third-party complaint need
not be within the jurisdiction of the RTC where the principal
122

action is pending because the third-party complaint is really a

continuation and an ancillary to the principal action. If the
court acquires jurisdiction over the main action,
automatically, it acquires jurisdiction over the third-party
complain which is mainly a continuation of the principal
action.
Summons on third, fourth, etc. party defendant must be served for

the court to acquire jurisdiction over his person, since he is not an
original party.
A third-party complaint is not proper in an ction for declaratory
relief (Comm. of Customs vs. Cloribel, GR No. L - 21036, June 30,
1977)
Now, the same situation happened in another case. The case of

Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third-party complaint, regardless of the
amount involved as a third-party complaint is merely auxiliary to an
is a continuation of the main action (Rep. vs. Central Surety and
Insurance Co. GR No. L 27802, Oct. 26, 1968)
EASTERN ASSURANCE vs. CUI 105 SCRA 642

FACTS: Carol is a resident of Davao City. Cathy is a resident of
Cebu City. Carol filed a case before the RTC of Davao City
against Cathy. Cathy files a third-party complaint against Joy,
a resident of Manila. Is the venue proper?
Sec. 12. Bringing new parties. - When the

presence of parties other than those to the
original action is required for the granting of
complete relief in the determination of a
counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if
jurisdiction over them can be obtained.
HELD: The venue is proper because the venue of the main

action is proper. So automatically third-party complaint is also
proper. The third-party has to yield to the jurisdiction and
venue of the main action.
Now of course, if theres such a thing as 3rd party complaint, there
is also a 4th, 5th, 6th or 7th complaint. That is possible but
everything is with respect to his opponents claim.
Distinguished from a Third-Party Complaint

A third party complaint is proper when not one of the third-party
defendants therein is a party to the main action. If one or more of
the defendants in a counterclaim or cross-claim is already a party
to the action, then the other necessary parties may be brought in
under this section.
EXAMPLE:
A
A files a
complaint
against B
C
B files a 3rd
party
complaint
against C
D
C files a 4th
party
complaint
against D
E
D files a 5th
party
complaint
against E
The best example of Section 12 is the case of:

SAPUGAY vs. CA 183 SCRA 464
As car was bumped by B. But B contented that the reason that he

bumped As car was because he was bumped by C and the same
goes to C, D, E. B then files a 3rd party complaint against C. C files a
4th party complaint against D. D files a 5th party complaint against
E. Meaning, pasahan, ba. They will throw the liability to the one
who did it. That is a good hypothetical example of how a fourth,
fifth, sixth party complaint can come into play.
FACTS: Mobil Philippines filed a case against Sapugay, its

gasoline dealer. Sapugay filed an answer and interposed a
counterclaim for damages against Mobil and included
Cardenas (the manager of Mobil) who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the
counterclaim is proper where he is not a plaintiff in the Mobil
case.
Rule on Venue and Jurisdiction Inapplicable
HELD: The inclusion of Cardenas is proper. The general rule

that the defendant cannot by a counterclaim bring into the
action any claim against persons other than the plaintiff,
admits of an exception under this provision (Section 12)
meaning, if it is necessary to include a 3rd person in a
counterclaim or cross-claim, the court can order him to be
brought in as defendants. In effect, the bringing of Cardenas
in the case is sanctioned by the Rules.
Jurisdiction over the third-party complaint is but a continuation of

the main action and is a procedural device to avoid multiplicity of
suits. Because of its nature, the proscription on jurisdiction and
venue applicable to ordinary suits may not apply. (Eastern
Assurance vs. Cui, 105 SCRA 622 [1981])
Grounds for Denial of Third-Party Complaint
a.
b.
When allowance would delay resolution of the original

case or when the third-party defendant could not be
located; and
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN 198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general)
represented the government for PCGG. The case arose out of
PCGG cases wherein Enrile was sued for accumulation of his
When extraneous matters to issue of possession would

unnecessarily clutter a case of forcible entry.(del Rosario
v. Jimenez 8 SCRA 549)
123

ill-gotten wealth. Enrile filed an answer to the complaint.

Enrile contends that the case is harassment suit whose
mastermind was the Solicitor General himself. Enrile files a
counterclaim against Chavez. (Enriles lawyer maybe well
aware of the Sapugay case the one sued is the lawyer.)
Chavez questioned such counterclaim contending that he was
not a plaintiff. Sandiganbayan denied such contention.
If C has the right to frontally meet the action filed by A meaning,

C will fight A directly if C has the right to assert any defense which
B has against A and even for C to litigate against A, then it must be
a proper third party complaint. That has happened several times.
EXAMPLE: B owns a car which was already sold to C. The trouble is
that B never registered the transaction. On the record, B is still the
registered owner. Then C, while driving the car, meets an accident
and injures A. When A looked at the record, the owner is B. So A
files a case against B. So B will file a third party complaint against
the real owner (C). Now, C can frontally meet the complaint filed by
A. That is the best example where you have the right against the
original plaintiff or even assert a counterclaim against him. As a
matter of fact, that last test is now incorporated as a new provision
(Section 13).
HELD: The inclusion of plaintiffs lawyer is improper.

To allow a counterclaim against a lawyer who files a
complaint for his clients, who is merely their representative in
court and not a plaintiff or complainant in the case would lead
to mischievous consequences. A lawyer owes his client entire
devotion to his genuine interest, warm zeal in the
maintenance and defense of his rights and the exertion of his
utmost learning and ability. A lawyer cannot properly attend
to his duties towards his client if, in the same case, he is kept
busy defending himself.
In the case of:

SINGAPORE AIRLINES vs. CA 243 SCRA 143 [1995]
Q: Is the SC suggesting that a lawyer who sued in a harassment

case can get away with it? Does that mean to say that the lawyer is
immune from suit?
FACTS: Aying filed a case against Bugoy. Bugoy filed a third

party complaint against and Cyle who wants to frontally meet
the main complaint filed by Aying
A: NO, the SC does not say a lawyer enjoys a special immunity from
damage suits. However, when he acts in the name of the client, he
should not be sued in a counterclaim in the very same case where
he has filed only as a counsel and not as party. Only claims for
alleged damages or other causes of action should be filed in a
separate case. Thus, if you feel that the lawyer is acting maliciously,
you file a complaint but in a separate case. Thats why the case of
Sapugay should not be confused with Chavez.
HELD: If that is your purpose, you have to file two (2) answers
you file an answer to the third party complaint and you file a
second answer to the main complaint filed by Aying.
A third-party complaint involves an action separate and
distinct from, although related to, the main complaint. A
third-party defendant who feels aggrieved by some
allegations in the main complaint should, aside from
answering the third-party complaint, also answer the main
complaint.
Sec. 13. Answer to third (fourth, etc.) party

complaint. - A third (fourth, etc.)-party
defendant may allege in his answer his
defenses, counterclaims or cross-claims,
including such defenses that the third (fourth,
etc.)-party plaintiff may have against the
original plaintiff in respect of the latter's
claim against the third-party plaintiff. (n)
ILLUSTRATIONS:
Normally, Cyle answers the 3rd party complaint of Bugoy and does
not answer to the complaint of Aying. But according to SINGAPORE
case, if Cyle feels aggrieved by the allegations of Aying, he should
also answer the main complaint of Aying. Practically, he shall
answer the 3rd party complaint and the main complaint.
A files a case against B
B files a 3rd party complaint against C
C
A vs. B; B vs. C. Normally, B will defend himself against the
complaint of A and C will defend himself in the complaint of B. That
is supposed to be the pattern. Normally, C does not file a direct
claim against A. But the law allows C in defending himself, to
answer the claim of A. The law allows him to file a direct
counterclaim against A.
124

Rule 7
A: In the complaint, YES. They shall all be named. It is possible that

the title alone will reach 3 or more pages.
PARTS OF A PLEADING
BUT in subsequent pleadings like the answer, reply, it is not
necessary to write the name of everybody. What the law requires is
to write the name of the first plaintiff followed by the term ET AL.
Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al,
defendants.
Sec. 1 Caption. The caption sets forth the

name of the court. The title of the action, and
docket number if assigned.
So the rule is, it is only in the complaint where the name of all the
parties are required to be stated, but in subsequent pleadings, no
need. But there is an EXCEPTION to this rule. There are instances
where the law does not require the name of the parties to be
stated even in the complaint.
The title of the action indicates the names of

the parties. 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
started with an appropriate indication when
there are other parties.
Q: What are the instances where the law does not require the
name of the parties to be stated even in the complaint or pleading?
Their respective participation in the case shall

be indicated.
ILLUSTRATION:
CAPTION contains the following:
1)
2)
3)
the name of the court;

the title of the action and
the docket number if assigned.
Republic of the Philippines

11th Judicial Region
Regional Trial Court of Davao
Branch 12
Juan dela Cruz,

Plaintiff
TITLE
Civil Case #12345
-versus-
For: Annulment of Contract
Osama bin Laden

Defendant
COMPLAINT
BODY sets forth:

1)
2)
3)
4)
Plaintiff, through counsel respectfully alleges that:

1.
x x x x x x;
3.
xxxxxx
its designation;
the allegation of the party's claims and defenses;
the relief prayed for; and
2. x x x x x x;
the date of the pleading
So, there must be a caption, title. Take note, the title of the action
indicates the names of the parties. They shall all be named in the
original complaint or petition; but in the subsequent pleadings, it shall
be sufficient if the name of the first party of each side be stated
without the others. You only write the first name of plaintiff and
defendant and followed by the word ET AL.
A: These are the following:
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept

of permissive joinder of
parties.
1.)
Subsequent Pleading (e.g. answer, reply, etc.)

(Section 1);
2.)
Class suit (Rule 3, Section 12);
3.)
When the identity or name of the defendant is

unknown (Rule 3, Section 14);
4.)
When you sue an entity without judicial personality

(Rule 3, Section 15);
Now is it necessary that they
shall be named?
125

5.)
If a party is sued in his official capacity. Official

designation is sufficient. [e.g. Mr. Acelar vs. City
Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil.
253)
(b) Headings - When two or more causes of

action are joined, the statement of the first
shall be prefaced by the words "First cause of
action", of the second by "second cause of
action," and so on for the others.
Variance between caption and allegations in the pleading
(c) Relief - The pleading shall specify the relief

sought, but it may add a general prayer for
such further or other relief as may be
deemed just or equitable. (3a, R6)
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. vs. CA, 271 SCRA 157; Banco Filipino
vs. CA, 332 SCRA 241; Lorbes vs. CA 351 SCRA 716). Thus, a
complaint 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.
(d) Date - Every pleading shall be dated. (n)

In the body, you state your allegations or defenses. Then at the
end, you state the relief which we call PRAYER what you are
asking the court: Wherefore, it is respectfully prayed that
judgment be rendered ordering defendant to pay plaintiff his loan
of P1 million with interest of 10% p.a. from this date until fully
paid. Then, you end up with the date of the pleading: Davao City,
Philippines, December 10, 1997.
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
property in question. The action therefore, is a real action (Gochan
vs. Gochan, 372 SCRA 256). 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 vs. CA 351 SCRA
716).
A pleading is divided into paragraphs so numbered as to be readily

identified. Normally, a complaint starts: Plaintiff, thru counsel,
respectfully alleges that x x x. Then first paragraph, second
paragraph and so on. The first paragraph is normally the statement
of the parties and their addresses which is required under Rule 6
where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of
Davao City whereas defendant Pedro Bautista, is also of
legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan
from plaintiff in the amount of so much payable on this
date.
If the petitioner filed before the SC a petition captioned Petition

for Certiorari based on Rule 65 but the allegations show that the
issues raised are pure questions of law, the cause of action is not
one based on Rule 65 which raises issues of jurisdiction, but on
Rule 45 which raises pure questions of law. The allegations of the
pleading determine the cause of action and not the title of the
pleading (De Castro vs. Fernandez, Jr. GR No. 155041, Feb. 14,
2007)
3. The loan is now overdue but defendant still refused to

pay.
So every paragraph is numbered so that it can easily be identified
in the subsequent pleadings. So in his Answer, the defendant will
just refer to the #, I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action.
Can you file one complaint embodying two or more causes of
action? YES.
Sec. 2. The body. - The body of the pleading

sets forth its designation, the allegations of
the party's claims or defenses, the relief
prayed for, and the date of the pleading. (n)
EXAMPLE: Angelo wants to file a case against Ina to collect three

unpaid promissory notes. So, there are three causes of action. The
lawyer of Angelo decided to file only one complaint collecting the
three promissory notes. Now, how should he prepare the
complaint containing the three promissory notes?
a) Paragraphs - the allegations in the body of

a pleading shall be divided into paragraphs so
numbered as to be readily identified, each of
which shall contain a statement of a single
set of circumstances so far as that can be
done with convenience. A paragraph may be
referred to by its number in all succeeding
pleadings. (3a)
Plaintiff respectfully alleges: 1. that he is of

legal age x x x.
126

FIRST CAUSE OF ACTION: In 1995, there was a

loan secured amounting to so much and
it is not paid until now;
which should be instituted in the place where the parties reside.

But if you look at the prayer: Wherefore, it is respectfully prayed
that after trial, the deed of sale shall be annulled on the ground of
intimidation, and the ownership of the land sold to the defendant in
Digos be ordered returned. Actually, you are trying to recover the
ownership of the land. So in other words, it is not a personal action
but a real action.
SECOND CAUSE OF ACTION: In 1995, there

was a second loanbecame payable and
is not paid.
THIRD CAUSE OF ACTION: x x x x.
So, you indicate your different causes of action. That is how you
prepare your complaint. On the other hand, the defendant will
answer:
Sec. 3. Signature and Address.- Every pleading

must be signed by the party or counsel
representing him, stating in either case his
address which should not be a post office
box.
ANSWER:
xxxxx
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
Signature and address every pleading must be signed by the party

or the counsel representing him.
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
A signed pleading is one that is signed either by the party himself or

his counsel. Section 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 vs. Kenrick Development
Corp. 351 SCRA 716)
ANSWER TO THE THIRD CAUSE OF ACTION x x x.

Do not combine them together in one paragraph. Even in trial
when you present your exhibits, you might get confused because
you combined all the three causes of action in one paragraph. But
with this one, the presentation is clearer, the outline is clearer and
it is more scientifically arranged than joining them in one story.
It has been held that counsels 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:
Under paragraph [c], the pleading must state the relief sought. But
it may add a general prayer for such further other relief as may be
just and equitable like yung mga pahabol na Plaintiff prays for
such further or other relief which the court may deem just or
equitable.
1.
2.
The relief or prayer, although part of the complaint, does not

constitute a part of the statement of the cause of action. It does
not also serve to limit or narrow the issues presented (UBS vs. CA
332 SCRA 534)
3.
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.
It is the material allegations of the complaint, not the legal

consequences made therein or the prayer that determines the
relief to which the plaintiff is entitled. (Banco Filipino vs. CA 332
SCRA 241).
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:
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 vs. CA).
Q: Is the prayer or relief part of the main action?
Rule 9.01 A lawyer shall not delegate to any unqualified person

the performance of any task which by law may only be performed
by a member of the Bar in good standing.
A: NO, it is part of the complaint or answer but it may indicate

what is the nature of the cause of action. Cause of actions are mere
allegations. Prayer is not part of the action but it is important
because it might enlighten us on the nature of the cause of action.
That is the purpose of relief or prayer.
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
vs. Kenrick Development Corp.)
EXAMPLE: Angelo filed a case against Ina for annulment of a

contract of sale. If you look at the caption, it is a personal action
127

Not Post Office Address, why?
A: Well, actually if that is in good faith, the court may forgive the
counsel because the law says, however, the court, may in its
discretion, allow such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and not intended for
delay. Maybe, alright, you sign it now in order that it will produce
a legal effect.
Take note of the prohibition now: You must state your address
which should not be a post office box because one difficulty is that
the exact date when you claim your mail cannot be determined if it
is a P.O. box. But if it is served to his office, the exact date can
easily be determined.
However, if the lawyer files a pleading which is UNSIGNED

DELIBERATELY, then, according to the rules, he shall be subject to
appropriate disciplinary action. That is practically unethical no?
Not only that, he is also subject to disciplinary action if he signs a
pleading in violation of this Rule or alleges scandalous or indecent
matter therein, or fails to promptly report to the court a change of
his address..
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:

The signature of counsel constitutes a
certification by him that he has read the
pleading; that to the best to his knowledge,
information, and belief there is good ground
to support it; and that it is not interposed for
delay.
Now, this ground fails to promptly report to the court a change of

his address has been inserted in 1997 Rules, this was not found in
the prior Rules perhaps to prevent delays.
Q: What do you mean by this?
Q: When a lawyer signs a pleading, what is he certifying?
A: A lawyer will file a pleading in court, he will say this is his

address, and then he moves his office without telling the court or
the opposing counsel of his new address. So, the court will be
sending notices and orders to his old address and it is returned to
sender because the lawyer already moved to another place. So, it
causes delay.
A: Second paragraph says, he is certifying 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 it is not interposed for
delay.
That is called as an IMPLIED CERTIFICATION IN A
PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already
asked in the bar once.
So, in order to penalize the lawyer, subject to disciplinary action, it

is his obligation to inform the court and even the opposing counsel
about his new address so that all court orders, decisions and all
pleadings will be served on his address. I think what prompted the
SC to insert this is the fact that it has been the cause of delays in
many cases.
BAR QUESTION: What is the meaning of the phrase Implied

Certification in a Pleading?
A: Implied Certification in a Pleading means that when a lawyer
signs a pleading he is certifying that he has read it, to the best of his
knowledge, information and belief there is a good ground to
support it, and it is not interposed for delay.
Disciplinary action on counsel in the following cases:
Section 3, last paragraph:
1.
2.
3.
An unsigned pleading produces no legal

effect. However, the court may, in its
discretion, allow such deficiency to be
remedied if it shall appear that the same was
due to mere inadvertence and not intended
for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly
report to the court a change of his address,
shall be subject to appropriate disciplinary
action. (5a)
4.
deliberately filing an unsigned pleading;

deliberately signing a pleading in violation of the Rules;
alleging scandalous or indecent matter in the pleading;
or
failing to promptly report a change of his/her address.
Signature of a disjoined party
The Court rules that the absence of the signature of the person
misjoined as a party-plaintiff in either the verifification page or
certification against forum shopping is not a ground for the
dismissal of the action. There is no judicial precedent affirming or
rejecting such a view, but we are comfortable with making such a
pronouncement. A disjoined party plaintiff has no business
participating in the case as a plaintiff in the first place, and it would
make little sense to require the disjoined party in complying with
all the requirements expected of plaintiffs (Chua v. Torres GR No.
151900, Aug 30, 2005).
So, when a pleading is not signed it produces no legal effect. It is as

if no pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not
intentional maybe because he was hurrying to file the pleading, the
lawyer had it filed when actually he has not signed it yet.
128

VERIFICATION
a)
b)
Sec. 4. Verification - Except when otherwise

specifically required by law or rule, pleadings
need not be under oath, verified or
accompanied by affidavit. (5)
the affiant has read the pleading, and

that the allegations therein are true and correct of his
personal knowledge or based on authentic records (Sec.
4 as amended by A.M. No. 00-2-10, May 1, 2000)
Significance of Verification
The purpose of verification is to insure good faith in the averments
of a pleading or are true and correct, not merely speculative.
(Sarmiento vs. Zaratan GR No. 167471, February 5, 2007).
A pleading is verified by an affidavit that the

affiant has read the pleading and that the
allegations therein are true and correct of his
knowledge and belief.
Effect of lack of Verification
A pleading required to be verified which

contains a verification based on "information
and belief," or upon "knowledge, information
and belief," or lacks a proper verification,
shall be treated as an unsigned pleading. (6a)
Lack of verification in a pleading is a formal defect, not

jurisdictional defect, and can be cured by amendment. (Phil. Bank
of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
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. vs. NLRC 272
SCRA 737) The court may order the correction of the pleading or
act on an unverified pleading if the attending circumstances are
such that strict compliance would not fully serve substantial justice,
which after all, is the basic aim for the rules of procedure. (Robert
Development Corp. vs. Quitain 315 SCRA 150; Joson vs. Torres 290
SCRA 279)
Q: What do you understand by verification in a pleading?

A: It means that there is an affidavit accompanying the pleading
that the pleader will certify that he prepared the pleading, that all
allegations therein are true and correct. For example: In the
pleading the plaintiff will say:
I, Juan de la Cruz of legal age, after being
sworn in accordance with law, hereby say
that:
Q: What do you think will happen if a pleading is verified by a party

and it turns out that the allegations are false? And that he
deliberately made those allegations false and under oath.
I am the plaintiff in the above entitled case.

I caused the preparation of this complaint;
I read the allegations therein;
A: Well, you know your Criminal Law. That will be a ground for the
prosecution for the crime of perjury, because that is a false
affidavit. But if the pleading is not verified, even if they are false,
there is no perjury, because perjury requires a sworn statement by
the accused.
And they are true and correct of my own

knowledge.
Signed
Affiant
Subscribed and sworn to before me on this
2nd day of October 2001, in the City of Cebu,
Philippines.
Q: Does the law require every pleading to be verified?

A: NO. The GENERAL RULE is, pleadings need not be under oath,
EXCEPT when otherwise specifically required by law or this rule.
When the law or rules require a pleading to be verified, then it
must be verified, otherwise it is formally detective. If the law is
silent, verification is not necessary and the pleading is filed
properly.
Panfilo Corpuz
Notary Public
That is what you call verification of a pleading. That the pleader,
whether plaintiff or defendant, will attest that the allegations in his
complaint or in his answer are true and correct of his own
knowledge. And then, he will sign it, and then below that, there will
be the so-called JURAT - Subscribed and sworn to before me on
this ___ day of December 1997, in the City of Cebu, Philippines.
Then, signed by the notary public. Meaning, statements, in the
pleading are confirmed to be correct, under oath, by the
defendant. That is called, the verification of a pleading.
Litigants not required to read the very same document to be filed

in court
Generally, a pleading is not required to be verified unless required
by law or by the Rules of Court. Verification, when required, is
intended to secure an assurance that the allegations of a pleading
are true and correct; are not speculative or merely imagined; and
have been made in good faith. To achieve this purpose, the
verification of a pleading is made through an affidavit or sworn
statement confirming that the affiant has read the pleading whose
How is a Pleading Verified

A pleading is verified by an affidavit. This affidavit declares that:
129

allegations are true and correct of the affiant's personal knowledge

or based on authentic records.
with it? Technically, none. But if it is required to be verified and you

omit the verification, it is formally defective.
However, the Rules do not require the litigants to read the very
same document that is to be filed before the courts; what the Rules
require is for a party to read the contents of a pleading without any
specific requirement on the form or manner in which the reading is
to be done. That a client may read the contents of a pleading
without seeing the same pleading to be actually filed with the court
is, in these days of e-mails and other technological advances in
communication not an explanation that is hard to believe. The
variance between the dates of the Petition and the Verification
does not necessarily lead to the conclusion that no verification was
made, or that the verification was false. (Sps. Valmonte v. Alcala,
GR No. 168667, July 23, 2008)
CERTIFICATION OF NON-FORUM SHOPPING

Sec. 5. Certification against forum shopping.-The plaintiff or the principal party shall
certify under oath in the complaint or other
initiatory pleading asserting a claim for relief,
or in a sworn certification annexed thereto
and simultaneously filed therewith:
a) that he has not theretofore commenced
any action or filed any claim involving the
same issues in any court, tribunal or quasijudicial agency and, to the best of his
knowledge, no such other action or claim is
pending therein;
BAR QUESTION: Name as many pleadings as you can which must

be verified.
b) if there is such other pending action or

claim, a complete statement of the status
thereof; and
A: The following:
1)
Rule 8 when you deny the due execution of an

actionable document;
2) Summary Rules all pleadings under summary rules
should be verified;
3) Special Civil Actions petitions for certiorari, prohibition
and mandamus.
4) Statement of Claim for Small Claims cases as well as the
response thereto (Secs. 5 & 11, Procedure for Small
Claims Cases)
5) Complaint for Injunction (Sec. 4 R 58)
6) Application for Appointment of Receiver (Sec. 1 R 59)
7) Application for Support Pendente Lite (Sec. 1 R 69)
8) Petition for Forcible Entry or Unlawful Detainer, the
answers thereto, and the answers to any compulsory
counterclaim and cross-claim pleaded in the answer (Sec.
4 R 70)
9) Petition for Indirect Contempt (Sec. 4 R 71)
10) Petition for Relief from Judgment or Order (Sec. 3 R 38)
11) Petition for Review from the RTC to the SC (Sec. 2(c) R
41)
12) Petition for Review from RTC to SC (Sec. 1 R 42)
13) Petition for Review from CTA and other quasi-judicial
agencies to the CA (Sec. 5 R 43)
14) Appeal by Certiorari Under R 45 from CA to SC (Sec. 1 R
45)
15) Petition for Appointment of a Guardian (Sec. 2 R 93)
16) Petition for Leave filed by Guardian to Sell or Encumber
Property of an Estate (Sec. 1 R 95)
17) Petition for Declaration of Competency of a Ward (Sec. 1
R 97)
18) Petition for Habeas Corpus (Sec. 3 R 102)
19) Petition for Change of Name (Sec. 2 R 103)
20) Petition for Voluntary Judicial Dissolution of a
Corporation (Sec. 1 R 105)
21) Petition for Cancellation or Correction of Entries in the
Civil Registrar (Sec. 1 R 108)
Q: Now, on the other hand, suppose a pleading does not require
verification but the lawyer had it verified. What is the effect?
c) if he should thereafter learn that the same

or similar action or claim has been filed or
pending, he shall report that fact within (5)
days therefrom the court wherein his
aforesaid complaint or initiatory pleading has
been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be cause for the
dismissal of the case without prejudice,
unless otherwise provided, upon motion and
after hearing. The submission of a false
certification or non-compliance with any of
the undertakings therein, shall constitute
indirect contempt of court, without the
prejudice
to
the
corresponding
administrative and criminal actions. If the
acts of the party or his counsel clearly
constitute willful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause
for administrative sanctions. (n)
The certification is mandatory under Sec. 5 of Rule 7 but not
jurisdictional. (Robert Development Corp. vs. Quitain)
This rule 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 appears under Rule 46, Sec. 3 which requires that every
petition for certiorari to be accompanied by a sworn certification of
A: There is no effect, just surplusage! A pleading in general is not

required to be verified. But I will verify it. Is there something wrong
130

non-forum shopping. (Wacnang vs. Comelec, GR No. 178024 Oct.

17, 2008)
substantially the same reliefs, in the process creating possibility of

conflicting decisions being rendered by the different courts and/or
administrative agencies upon the same issues (Lim vs. Vianzon GR
137187, August 3, 2006).
Meaning of Forum Shopping

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 same supposition that one or
the other court would make a favorable disposition or increase a
partys chances of obtaining a favorable decision or action.
(Huibonhoa vs. Concepcion GR 153785, August 3, 2006; Heirs of
Cesar Marasigan vs. Marasigan, GR 156078 March 14, 2008)
Who executes the certification?

It is the plaintiff or principal party who executes the certification
under oath. (Sec. 5). The certification must be executed by the
party, not the attorney (Damasco vs. NLRC 346 SCRA 714).
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 vs. CA 297 SCRA 30). This is the general and prevailing
rule.
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. (Sps.
Carpio vs. Rural Bank of Sto. Tomas Batangas GR 153171 May 4,
2006)
Liberal interpretation of the rule

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. vs. Acuna 452 SCRA 422). Hence,
the rule is subject to the power of the SC to suspend procedural
rules and to lay down exceptions to the same.
Rationale against forum shopping

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 court. Thus, the
rule proscribing forum shopping seeks to promote candor and
transparency 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 vs. Concepcion, supra).
Examples:
While a petition for certiorari is flawed where the certification

of non-forum shopping was signed only by counsel and not by
the party, this procedural lapse was overlooked by the Court
in the interest of justice (Sy Chin vs. CA 345 SCRA 673). 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 vs. Levy 344 SCRA 821). In
De Guia vs. De Guia 356 SCRA 287, the SC 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 justice.
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 vs. Concepcion)
What is pivotal in determining whether forum shopping exists or

not is the vexation caused the courts and parties-litigants by a
party who asks different courts and/or administrative agencies to
rule on the same or related causes and/or grant the same or
In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled that
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 by one of the
petitioners was held to be a substantial compliance of the
rule. In a subsequent ruling in the case of Docena vs. Lapesura
(355 SCRA 658), where only the husband signed the certificate
against forum shopping in a petition involving the conjugal
residence of the spouses, the SC considered the certification
as having substantially complied with the requirements.
In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), 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 co-
How to determine existence of forum shopping
131

owners 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.
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 vs. CA
388 SCRA 85).
Authority to sign Certification of Non Forum Shopping
In Bases Conversion Development Authority GR No. 144062,

November 2, 2006, while only one petitioner signed the
verification and certification, it was held that such fact is not
fatal to the petition. The Court ruled that the signature of a
principal party satisfies the requirement because under the
Rules it is clear that the certification may be signed by a
principal party.
A board resolution purporting to authorize a person to sign

documents on behalf of the corporation must explicitly vest such
authority. The signing of verifications and certifications against
forum shopping is not integral to the act of filing; this may not be
deemed as necessarily included in an authorization merely to file
cases. (MCWD vs. Margarita A. Adala, GR No. 168914, July 4, 2007)
In HLC Construction and Development Corp. vs. Emily Homes

Subdivision Homeowners Association 411 SCRA 504, the Court
ruled that the signature of only one petitioner substantially
complied with the rules because all the petitioners shared a
common interest and invoked a common cause of action or
defense.
Pleadings requiring a certification

The certification against forum shopping is mandatory in filing a
complaint and other initiatory pleadings asserting a claim (Sec.5)
This initiatory pleadings include not only the 1. original complaint
but also 2.permissive counterclaim, 3. cross-claim, 4. third (fourth)party complaint, 5. complaint in intervention, 6. petition or any
application in which a party asserts a claim for relief. 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. It is therefore, not an initiatory pleading
(UST vs. Surla, 294 SCRA 382)
Lack of certification not cured by subsequent submission

In appeal by certiorari to the Supreme Court, the lack of
certification is generally not curable by the submission thereof
after the filing of the petition. Sec. 5, Rule 45 of the 1997 Rules
provides that failure of the petitioner to submit the required
documents that should accompany the petition, including the
certification, required in Sec. 4, Rule 45, shall be sufficient ground
for the dismissal thereof.
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 (Sps. Carpio vs. Rural Bank
of Sto. Tomas Batangas, supra)
Exceptions
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.
Lack of authority to sign certification
UST HOSPITAL vs. SURLA - 294 SCRA 382 [Aug. 17, 1998]
The same liberal construction applies to certifications against

forum shopping signed by the 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 the 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
cases, (Shipside Incorporated vs. CA 404 SCRA 981; Ateneo de Naga
University vs. Manalo 458 SCRA 325, etc) the Court permitted the
subsequent submission of proof of authority to sign the
certification against forum shopping.
HELD: The certification of non-forum shopping applies only to

permissive counterclaims because there is no possibility of
forum shopping in compulsory counterclaims.
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.
Signing the Certification when the plaintiff is a juridical person

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 the
corporation. As long as he is duly authorized by the corporation
Effect of non-compliance
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).
132

The dismissal is not to be done by the court motu proprio as

the rule requires that it shall be done upon motion and after
hearing (Sec. 5)
Failure to submit certification against forum shopping and

forum shopping are two separate grounds for dismissal-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 vs. Espina 548
SCRA 588, March 14, 2008).
The dismissal is, as a rule, without prejudice unless the

order provides otherwise (Sec. 5)
Q: What is the effect if a complaint or a third-party complaint is
filed in court without the certification on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the
complaint.
Now lets go to the second paragraph.
Again, what is the possibility if the complaint is filed without the
certification against forum shopping? That is a ground by itself for
the dismissal of the complaint.
No appeal from an order of dismissal

If a complaint is dismissed for failure to comply with required
certification, the plaintiff cannot appeal from such 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. 1[g], Rule 41 as amended, Rules of Court.
Q: Now, suppose I will amend the complaint because at first there

was no certification of non-forum shopping, therefore,
automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, failure to comply with the
foregoing requirements shall not be curable by mere amendment
of the complaint or other initiatory pleading, but shall be cause for
the dismissal of the case without prejudice. In other words, the
complaint will be dismissed but you can still re-file the case with
the inclusion of the certification against forum shopping.
Effect of willful and deliberate forum shopping

Pursuant to Sec. 5, it will result to a summary dismissal, that
is, without need of a motion to dismiss and hearing and the
dismissal is with prejudice.
Unless otherwise provided, upon the motion after hearing

meaning, it is now discretionary on the court to determine whether
to dismiss or not to dismiss. Of course, it is a ground for dismissal,
but the court may say, Okay, we will just amend it. We will not
dismiss. But definitely, you cannot insist that because I already
amended, everything is cured. That is for the court to determine
whether to dismiss or not to dismiss. So, mere amendment does
not cure automatically the missing certification. (I dont agree
because the unless otherwise provided appears to qualify the
dismissal without prejudice. In other words, the court can order the
dismissal with prejudice.)
Effect of submission of a false certification

It shall constitute:
1)
2)
indirect contempt
without prejudice to the corresponding administrative
and criminal sanctions (Sec.5)
Effect of non-compliance with the undertakings

It has the same effect as the submission of a false certification
(Sec.5), hence shall constitute indirect contempt without
prejudice to the corresponding administrative and criminal
sanctions (Sec. 5).
I think this provision that mere amendment does not cure

automatically the missing certification for non-forum shopping was
taken by the SC from its ruling in the 1995 case of
OTHER REQUIREMENTS
KAVINTA vs. CASTILLO, JR. 249 SCRA 604
All pleadings, motions and papers filed in court by counsel

shall bear in addition to counsels current Professional Tax
Receipt Number (PTR), counsels 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 5 days from notice. Failure to comply with
such requirement shall be a ground for further disciplinary
HELD: The mere submission of a certification under

Administrative Circular No. 04-94 after the filing of a motion
to dismiss on the ground of non-compliance thereof does not
ipso facto operate as a substantial compliance; otherwise the
Circular would lose its value or efficacy.
As a matter of fact, if the certification is deliberately false there are
many other sanctions contempt, possible administrative actions
against the lawyer or criminal case for perjury.
133

sanction and for contempt of court (Circular No. 10, July 24,
1985; Bar Matter No. 287, September 26, 2000.
On November 12, 2002, the SC 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 in judicial and quasi-judicial bodies in addition to the
previously required current PTR and IBP OR. The requirement
is meant to protect the public by making it easier to detect
impostors who represent themselves as members of the Bar.
Non-compliance has the same effect as failure to indicate
counsels 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 No. 1132, April 1, 2003)
All practicing lawyers are required to indicate in all pleadings
filed before the courts or quasi-judicial bodies, the number
and date of issue of their MCLE Certificate of Compliance or
Certificate of Exemption. Failure to disclose the information
would cause the dismissal of the case and the expunction of
the pleading from the records (Bar Matter No. 1922 En Banc
Resolution, June 3, 2008). Per En Banc Resolution of the Supre
Court dated September 2, 2008, the effectivity date of the
implementation was moved from August 25, 2008 to January
1, 2009.
134

Rule 8
defense become incomplete, a certain element of cause of action

disappears then it must be a statement of ultimate fact.
MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Q: What are the essential elements of a cause of action?
A: The following:
Sec. 1 In general Every pleading shall
contain in a methodical and logical form, a
plain, concise and direct statement of the
ultimate facts on which the party pleading
relies for his claim or defense, as the case
may be, omitting the statement of mere
evidentiary facts.
1.)
2.)
3.)
4.)
Statement of the right;

Statement of the obligation;
Statement of the violation; and
Statement of damage.
You analyze a complaint from the first to the last paragraph, you
find out whether the four are present.
If a defense relied on is based on law, the

pertinent provisions thereof and their
applicability to him shall be clearly and
concisely stated.
So if the statement can be deleted and the cause of action is still

complete, then it is not a statement of ultimate fact. It is only a
statement of evidentiary fact.
Evidentiary Facts
Pleadings must only state the ultimate facts where one relies on his
defense or complaint. You must omit the statement of mere
evidentiary facts.
Q: What are evidentiary facts?

A: Evidentiary facts are the facts which will prove the ultimate
facts. They should not be stated in the pleading. They should be
brought out during the trial. They are proper during the trial but
they have no place in your pleading.
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 insufficient (Ceroferr Realty Corporation vs.
CA 376 SCRA 144). 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. vs. Republic, 204 SCRA
428)
Evidentiary facts refer to those which are necessary to prove the

ultimate fact or which furnish evidence of the existence of some
other facts.
In the law on Evidence, ultimate facts are called factum

probandum as distinguished from factum probans (evidentiary
facts).
EXAMPLE: In a land dispute, the question is: Who has been in
possession of the land for a long time? I claim Im the one. So, I will
say, plaintiff has been in possession of this land continuously for
the past 30 years. That is a statement of ultimate fact because
that shows your right your right over the property that you
cannot be driven out.
Distinguish ultimate facts from evidentiary facts

ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?

A: Ultimate facts are those which are essential to ones cause of
action or defense.
Suppose the lawyer wants to impress the court that the statement
is true, the pleading describing continuous possession for the past
30 years from 1967 to 1997. And therefore, the lawyer will now
prepare the complaint in this manner:
Ultimate facts refer to those which directly form the basis of the
right sought to be enforced or the defense relied upon. If the
ultimate facts are not alleged, the cause of action will be
insufficient.
Plaintiff has been in possession of the said

property continuously, openly for the past 30
years from 1967 to 1997 as may be borne out by
the following:
Q: How do you determine whether a fact is essential to your cause

of action or defense?
He entered the property in 1967. He cleared the

property by cutting the grass. In 1968, he planted
20 coconut trees. In 1969, he planted 50 coconut
trees. In 1970, he planted mango trees. In 1971, he
A: The test to determine whether the fact is essential to your cause

of action is: if the statement in the pleading cannot be deleted
because if you delete it, the statement of your cause of action or
135

planted guava. He will recite everything from 1967

to 1997.
problem, you answer and you try to argue why. You try to present
your answer in a clear manner. It must be methodical and logical.
The form is wrong because you are stating evidentiary facts.
PRINCIPLE: Only ultimate facts should be alleged and not the

evidentiary facts.
So, what should be the correct pattern?
Q: Apart from evidentiary facts, what are the other matters that
should not be stated in the pleading?
Plaintiff has been in continuous possession of the

property for 30 years from 1967 up to the present.
A: The following:
That is the ultimate fact.
1.)
2.)
3.)
Then, during the trial, you present the plaintiff and you ask the
plaintiff: Mr. Plaintiff, when did you occupy the property? 1967
When you first occupied the property, describe it. Ah, bagnot!
I have to clean it. So I clean it in 1967. In 1968, were you still
there? Oh yes! What did you do in 1968? I planted coconut
trees. Did you pay taxes in 1968? Yes! Wheres the receipt?
Eto o!
Facts which are presumed by law;

Conclusions of fact or law;
Matters which are in the domain of judicial notice
need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading.

When a fact is already presumed by law, there is no need to make
that allegation because your cause of action would still be
complete.
The evidentiary facts should be brought out in court not in the

pleadings, otherwise your pleading become kilometric. That is what
is meant by the phrase that you only state the ultimate facts
omitting the statement of evidentiary facts.
Example: Negligence in culpa contractual

Q: In a case of breach of contract against an operator of the
common carrier. Do you think it is necessary for the plaintiff to
allege that the driver acted negligently? Is an allegation that the
driver of the carrier acted with negligence required?
Another Example:
In a collection case you can just allege:
The defendant borrowed money and then it fell
due. I made demands for him to pay, but despite
repeated demands he refused to pay.
A: NO. There must be negligence, otherwise, there would be no

cause of action. However there is no need to allege it in the
complaint because under the Civil Code, whenever there is a
breach of contract of carriage, there is a presumption of negligence
on the part of carrier. It is not for the passenger to prove that the
common carrier is negligent. It is for the common carrier to prove
that it is not negligent.
You do not have to state in your complaint that when the account
fell due last November 5, I called him up by telephone. He promised
to pay in November 7 and called him again and he promised to pay
tomorrow Those are evidentiary facts which can be brought
forward during the trial.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no preexisting contract between the parties, the liability of the defendant
hinges on negligence. There must be allegation of negligence. The
defendant must be alleged to have acted negligently to hold him
liable otherwise, there is no cause of action. It becomes an
ultimate fact which should be alleged in the pleading.
Under Section 1, you state the ultimate facts on which you base
your claim or defense. How do you state the facts? Section 1 says
that statement of ultimate facts must be stated in a methodical and
logical form and you must use plain, concise and direct statements
or language. The simpler the language, the better. A pleading is
not a vehicle for you to show your mastery of the English language.
The judge might throw away your complaint for not using simple
language.
CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in the

pleading. A statement of fact is different from a conclusion of fact
or law.
How do you present the facts? In a methodical and logical form. It

is a matter of writing style. Every person has his style of writing.
Corollarily, every person expects you to write in a methodical or
logical form. We have said earlier that a pleading actually tells a
story. Plaintiff tells the court his story. Defendant tells his story,
too. Each presentation must be methodical and logical.
For EXAMPLE, where plaintiff said that he is entitled to moral

damages or attorneys fees. That is not a statement of fact but your
conclusion.
What is the first test whether you style is methodical or logical?

The best exercise is your own answer in examinations. In a
Statement of fact is to cite the basis why you are entitled you
must state the reason why you are entitled. The statement of the
136

ultimate fact as distinguished from conclusion is explained in the

old case of
insufficient by the insufficiency of one or

more of the alternative statements. (2)
MATHAY vs. CONSOLIDATED BANK 58 SCRA 559
The provision recognizes that the liability of the defendant may

possibly be based on either one of two 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.
HELD: A bare allegation that one is entitled to something is

an allegation of a conclusion. Such allegation adds nothing to
the pleading, it being necessary to plead specifically the facts
upon which such conclusion is founded.
You must plead the facts upon which your conclusion is founded.
To say that you are entitled to something is not actually a
statement of fact but merely a conclusion of the pleader. It adds
nothing to the pleading.
Q: What happens if one cause of action is insufficient? Will it cause

the dismissal of the complaint?
For EXAMPLE:
A: No, the complaint will remain insofar as the sufficient cause of

action is stated. The insufficiency of one will not affect the entire
pleading if the other cause of action is insufficient.
The complaint alleges that the defendants are holding the

plaintiffs property in Trust for the plaintiff without any explanation
of the facts from which the court could conclude whether there is a
trust or not. The SC in the case of MATHAY said that that
statement is merely a conclusion of the plaintiff. You must state
the basis of your statement that they are holding your property in
trust.
EXAMPLE:
I read a case about a passenger who was about to
board a bus. Of course when you are a passenger and
you get hurt, that is culpa contractual. If you are not a
passenger and you get hurt due to the negligence of
the driver, that is culpa aquiliana. So it depends
whether there is a contract of carriage or none.
So a statement of law is not allowed although there is an exception

under the second paragraph of Section 1 which says that if a
defense relied on is based on law, the pertinent provisions thereof
and their applicability to him shall be clearly and concisely stated.
Sometimes a defendant when he files his answer, it is purely based
on law. He must cite the legal provision in his answer and explain
WHY it is applicable to him.
In that case, the passenger was about to board a bus.

As a matter of fact, the left foot had already stepped
on the bus. The bus suddenly sped up. He fell. He
was injured. What is the basis against the carrier? Is
there a contract or none? There is because one foot
was already on it but others say there was no contract
yet. You dont really know whether your cause of
action is culpa contractual or culpa aquiliana. You
want to claim damages but you are not sure whether
your case is based on culpa contractual or culpa
aquiliana. Its either one of the two. It sometimes
happens.
Test to Distinguish Conclusions of Law from Statement of Facts

If from the facts in evidence the result can be reached by the
process of natural reasoning adopted in the investigation of truth,
it becomes an ultimate fact to be found as such.
If on the other hand resort must be had to artificial process of the
law in order to reach a final determination, the result is a
Conclusion of Law (herrera Vol. I)
Now, if I am the lawyer for the plaintiff and I am tortured to make

my choice, I may allege 2 possible alternative causes of action. I
will draft the complaint in such a way that I will show to the court
that my cause of action is either culpa contractual or culpa
aquilana. I will make sure that both allegations are covered. You
cannot be wrong because the law does not require you to make a
choice.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR

DEFENSES
Sec. 2.
Alternative causes of action or
defenses. - A party may set forth two or more
statements of a claim or defense
alternatively or hypothetically, either in one
cause of action or defense or in separate
causes of action or defenses. When two or
more statements are made in the alternative
and one of them if made independently
would be sufficient, the pleading is not made
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
137

breach of contract suit (Calalas vs. CA 332 SCRA356; FGU Insurance

Corp. vs. GP Sarmiento Trucking Corp. 386 SCRA 312). On the other
hand, negligence as a rule, is an essential element of a suit based
on a quasi-delict (Art. 2176, Civil Code).
choose one but it turned out that a different defense would be

correct. You cannot use that defense anymore. There is a prejudice
because during the trial, I will choose among them with the
evidence I have.
I can abandon the others. And that is even
better because you might confuse the plaintiff of what really is
your defense. Thus, a lawyer should not be afraid to hypothetically
or alternatively plead defenses which are inconsistent with each
other.
Under Sec. 2, 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.
That is perfectly allowed as it is alternative and during trial the

pleader may show the best one rather than not stating it in the
pleading and during the trial you waive the best defense because
according to the next rule, Rule 9, defenses or objections not
pleaded in the answer are deemed waived.
Alternative Defenses
Q: You are the defendant. You are confronted with the same
problem. There is a complaint against you and you have 3 possible
defenses. Am I obliged to make a choice immediately?
Take note that you have to correlate this topic on the related
provisions we have already taken up:
A: NO. The law allows the defendant to cite the 3 possible

defenses alternatively. Meaning, each is my defense or not.
For EXAMPLE:
1.)
No matter if your defenses are inconsistent Section 2, Rule 8 allows

the defendant to plead his defenses hypothetically or alternatively.
They may be inconsistent with each other but what is important is
each defense is consistent in itself. Meaning, each defense, when
taken alone, is a good defense. You look at them separately. Do
not compare them.
Rule 2, Section 5 where a party may, in one pleading

state in the alternative or otherwise, as many
causes of action;
2.)
Rule 3, Section 6 on permissive joinder of parties.

When may 2 persons or more be joined as plaintiffs
or defendants and how are they joined? They are
joined jointly, severally, or alternatively; and
For EXAMPLE:
3.)
Rule 3, Section 13 on alternative defendants. When

you are uncertain who is the real defendant, you
may join them alternatively although the relief
against one may be inconsistent with the other.
Plaintiff files a case against a defendant to collect

an unpaid loan. The basic allegation is that the
defendant obtained a sum of money by way of loan
and never paid it. Here is defendants answer:
a.)
b.)
c.)
Remember these provisions because they are interrelated. Thus,

when you study the Rules, dont limit yourself to a particular
provision. Look for other related provisions so you may see the
entire picture. Thats called co-relation You dont only see the
tree but the entire forest. This is very helpful in the bar exam.
That is not true. I never borrowed any

money from the plaintiff. That is a
defense of denial.
Assuming that I received money from
the plaintiff, that money was not a loan
but plaintiffs birthday gift to me. In
other words, it was a donation.
Assuming that the money I received
from the plaintiff was really a loan.
However, such amount was completely
paid. Defense of payment.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can

you do it in a general manner or do you need to be specific? How
do you allege your ultimate facts? Is it in particular or general
terms?
So, I have 3 defenses. How can you reconcile these 3 defenses?

They are inconsistent with each other but it should not be taken
against the defendant. What is important is that each defense is
consistent in itself. Look at them separately. That is also called a
SHOTGUN ANSWER.
A: It depends on what matters you are alleging in your complaint

whether it is a condition precedent, capacity to sue or be sued,
fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
The rule allowing alternative defenses is consistent with 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)
Sec. 3. Conditions Precedent. - In any

pleading, a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (3)
However, during that trial, you have to choose among them which
you think is true based on evidence. The problem is that you
138

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.
party to sue or be sued in a representative

capacity, shall do so by specific denial, which
shall include such supporting particulars as
are peculiarly within the pleader's
knowledge. (4)
Remember, that one of the elements of a right of action is that

before you can go to court, you must comply with all the conditions
precedent.
When you file a case against somebody you must have capacity to
sue and defendant must have capacity to be sued.
Q: When you allege compliance with the conditions precedent, is it

necessary for you to be specific what are those conditions
precedent?
Q: Is it necessary for me to say that plaintiff has capacity to sue?

And the defendant has capacity to be sued?
A: YES because Section 4 says you must show capacity to sue and
be sued. It means that capacity to sue and be sued must be averred
with particularity. A general statement of it is not sufficient. As a
matter of fact, that is the first paragraph of a complaint: Plaintiff,
Juan dela Cruz, of legal age, single, a resident of Davao City
There is no presumption of capacity or incapacity to sue.
A: NO. Section 3 says that in every pleading, a general averment for

the performance of all conditions precedent shall be sufficient. A
general allegation will suffice.
Examples of conditions precedent:
(a)
A tender of payment is required before making a

consignation (Art. 1256 Civil Code);
You may say, I am suing as guardian of the plaintiff. That is a

representative party to sue and be sued in a representative
capacity. Can you say, I am suing as a guardian? NO. Neither can
you say, I am appointed as the guardian.
(b) Exhaustion of administrative remedies is required in

certain cases before resorting to judicial action (Lopez
vs. City of Manila, 303 SCRA 448; Dy vs. CA 304 SCRA
331);
Q: How should it be done?
Prior resort to barangay conciliation proceedings is

necessary in certain cases (Book III, Title I, Chapter 7,
Local Government Code of 1991);
A: I am the courts appointed guardian of the plaintiff minor

having been appointed guardian by the court in this case based on
an order. You have to emphasize that the court appointed you.
(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);
Section 4 says, the legal existence of an organized association of

persons that is made a party... It means that the defendant is a
corporation existing by virtue of the Philippine Corporation Law.
There is no presumption that you are corporation. That is the
reason why facts showing capacity to sue and be sued, etc. must be
averred with particularity.
(c)
(e)
Arbitration may be a condition precedent when the

contract between the parties provides for arbitration
first before recourse to judicial remedies.
Theres a case which you will study in Corporation Law whether a

foreign corporation can sue in Philippine court. Under the law, it
can sue provided it is licensed to do business in the Philippines.
The SC emphasized that if a foreign corporation is suing somebody
in Philippine courts, the complaint must specifically allege that a
foreign corporation is doing business in the Philippines with a
license to do. Otherwise, it cannot sue.
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. 1[j], Rule 16)
A: According to Section 3, a general averment will be sufficient.
You need not specifically allege compliance of conditions
precedent. Therefore, an averment of the performance or
occurrence of all conditions precedent may be made generally and
it shall be sufficient.
A party desiring to raise an issue as to the

legal existence of any party or the capacity of
any party to sue or be sued in a
representative capacity, shall do so by
specific denial, which shall include such
supporting particulars as are peculiarly within
the pleader's knowledge (section 4, 2nd
sentence)
ALLEGATION OF CAPACITY TO SUE OR BE SUED

Sec. 4. Capacity - Facts showing the capacity
of a party to sue or to be sued or the
authority of a party to sue or to be sued in a
representative capacity or the legal existence
of an organized association of persons that is
made a party, must be averred. A party
desiring to raise an issue as to the legal
existence of any party or the capacity of any
EXAMPLE: You are the plaintiff corporation with juridical capacity.

I am the defendant. Suppose I will deny your capacity to sue. I will
deny that you are a corporation licensed to do business in the
Philippines. Now, the law requires me to deny your legal capacity
139

and I must state the reason or basis of such denial why you are
not of legal age, why you are not a corporation.
Sometimes a party invokes a judgment of a court or cite a previous

case like res adjudicata to dismiss a case.
This is so because the law says that when you deny or when you
question the legal existence of a party or the capacity of any party
to sue and be sued, you shall do so by specific denial which shall
include such supporting particulars as are peculiarly within the
defendants knowledge. You cannot plead a general statement
that you deny. Your denial must be particular. You must be more
specific about what you are denying.
Q: Suppose you will ask the court to dismiss the case because there
was already judgment rendered by the court years ago and you
simply say, There was a previous judgment. Is this sufficient?
A: YES because the law presumes that the judgment is valid. And
the presumption is that the court had jurisdiction. You do not have
to say that the court had jurisdiction over the subject matter,
issues, etc. when it tried the case years ago. So, it can be averred
generally.
ALLEGATION OF FRAUD OR MISTAKE

Sec. 5. Fraud, mistake, condition of the mind.In all averments of fraud or mistake, the
circumstances constituting fraud or mistake
must be stated with particularity. Malice,
intent, knowledge or other condition of the
mind of a person may be averred generally.
(5a)
Sec. 9. Official document or act. In pleading an

official document or official act, it is sufficient
to aver that the document was issued or the
act done in compliance with law. (9)
One can just plead the existence of a document made by the
government. EXAMPLE: official letter of the President, or official
communication by a government agency. It is sufficient to aver that
the document was issued or an act done.
Fraud and mistake

EXAMPLE: In annulment of a contract, fraud is one ground.
Suppose the consent was secured through fraud and plaintiff files a
case that the defendant employed fraud in obtaining his consent.
SUMMARY:
Q: What averment or allegations in pleadings may be done
GENERALLY?
Q: Is this statement sufficient?

A: The following:
A: No, because the circumstances constituting fraud or mistake
must be stated with particularity. The complaint must state how
the fraud was committed. It must be described in detail how the
fraud took place.
1.)
2.)
3.)
4.)
Malice, Intent, knowledge or conditions of the mind
Rule 8, Section 3 Conditions precedent;

Rule 8, Section 5, 2nd sentence Conditions of the
mind;
Rule 8, Section 6 Judgment;
Rule 8, Section 9 Official document or act
Q: What averments must be done with PARTICULARITY?
Q: In the second sentence, why is it that malice, intent, etc. may be

averred generally?
A: The following:
A: A general averment of malice or intent suffices because one

cannot describe or particularize what is in the mind of a party. I
cannot describe in detail the malice or the knowledge in your mind.
I can only say it in general terms. This is borne out of human
experience.
1.)
2.)
3.)
Rule 8, Section 4, first sentence Capacity to sue

and be sued;
Rule 8, Section 4, 2nd sentence Legal existence of
any party to sue or be sued;
Rule 8, Section 5, first sentence Fraud or mistake
ACTIONABLE DOCUMENTS
Fraud, on the other hand, is employed openly, by overt acts. How

you are deceived is not only in the mind. Those are manifested by
external acts. Therefore, one can describe how a fraud was
committed by the other party.
Sec. 7. Action or defense based on document.

Whenever an action or defense is based upon
a written instrument or document, the
substance of such instrument or document
shall be set forth in the pleading, and the
original or a copy thereof shall be attached to
the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said
copy may with like effect be set forth in the
pleading. (7)
Sec. 6. Judgment. 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 without setting forth
matter showing jurisdiction to render it. (6)
140

Not every document that is needed in trial is actionable document.
Q: Using the above promissory note, how should the pleading be

worded?
Q: What is an actionable document?

A: Two ways of pleading of actionable document:
A: An ACTIONABLE DOCUMENT is one which is the basis or the
foundation of the cause of action or defense and not merely an
evidence of the cause of action or defense. (Araneta, Inc. vs. Lyric
Film Exchange, 58 Phil. 736) It is the very heart and soul of your
cause of action or defense, not merely an evidence thereof.
1.)
So a promissory note to collect an unpaid loan is not only an

evidence of your cause of action but is it is the very cause of action
or foundation of your cause of action. On the other hand, when I
have a receipt, the receipt is not only evidence of your defense but
is the very foundation of your defense. If I would like to sue you to
annul a written contract, the contract to be rescinded or annulled is
the very cause of your action.
The substance shall be set forth in the pleading and the

original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed as part of
the pleading. Party simply cites only important parts of
the document, then attached the document.
EXAMPLE:
COMPLAINT
1.
2.
But in a collection case, if aside from promissory note I wrote you

several letters of demand to pay, such letters, while they are
relevant to the collection case, do not serve as the foundation of
your cause of action, although they are also important.
3.
Q: What is the purpose of the distinction between actionable and

non-actionable document?
Plaintiff B is xxx of legal age xxx;

Defendant A is xxxgayxxxx;
Sometime in December 31, 1997,
defendant A secured a loan from
plaintiff B for a sum of P1 million
payable not later than December
31, 1998 with 2% interest per
annum. Copy of said Promissory
Note hereto attached as EXHIBIT A;
The account is now overdue and
despite demands of defendant A
still failed to pay B xxx.
So, the main features of the promissory note are recited in your
pleading the date when the loan was secured, the amount, the
interest, etc. But still you have to attach a copy of the promissory
note, either xerox copy or the original.
A: If the document is not actionable, there is no need to follow

Section 7. If it is actionable, it must be pleaded in the manner
mentioned in Section 7. Also in Section 8, it is needed to know how
to contest the genuineness of the document.
2.)
Said copy may with like effect be set forth in the

pleading. Document is quoted verbatim.
Q: And how do you plead an actionable document under Section 7?

EXAMPLE:
A: There are two (2) options:
1.)
2.)
COMPLAINT
The substance of such instrument or document,

shall be set forth in the pleading and the original or
a copy thereof shall be attached as an exhibit; or
The copy of the document may with like effect be
quoted in the pleading, in which case, there is no
need to attach the copy.
1.
2.
Plaintiff B is xxx of legal age xxx;

Defendant A is xxxxxxx;
On Dec. 31, 1997 def. A secured a
loan from plaintiff B which is
covered by a promissory note
worded as follows:
In the first one, there is no need to copy it. Just mention the
substance or features of the promissory note. In the second case,
the entire document must be quoted in the pleading.
PROMISSORY NOTE:
December 31, 1997

EXAMPLE:
For value received, I promise to pay B P1 million not later

than one year from date with 2 percent per annum.
PROMISSORY NOTE:
December 31, 1997
Signed: A
For value received, I promise to pay B P1
million not later than one year from date
with 2 percent per annum.
3.
Signed: A
The account is now overdue and

despite demands of defendant A
still failed to pay B xxx.
So, you copy the entire promissory note verbatim. There is no need
to attach a copy of the promissory note. That is the second way.
141

Q: Suppose in the first way, the promissory note was not attached.
What will happen?
2.)
If signed by another, it was signed for him and with his

authority;
Q: Pretty Maya told Papa Paul that her housemate Sexy
Regina wanted to borrow money from him. Paul agreed.
Maya signed the promissory note: Regina as principal,
signed by Maya. But actually, Regina never ordered
Maya to use her (Reginas) name. When the note fell due
without payment, Paul sued Regina. Regina denied
agency but failed to verify her answer. What is the
effect?
A: The party violates Rule 8, Section 7. The adverse party may

move to dismiss the complaint for violation of the rules, if such
document could not be secured.
If an actionable document is properly pleaded in your pleading in
the manner mentioned in Section 7, the adverse party is now
obliged to follow Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When
an action or defense is founded upon a
written instrument, copied in or attached to
the corresponding pleading as provided in
the preceding section, the genuineness and
due execution of the instrument shall be
deemed admitted unless the adverse party,
under oath, specifically denies them, and sets
forth what he claims to be the facts; but the
requirement of an oath does not apply when
the adverse party does not appear to be a
party to the instrument or when compliance
with an order for an inspection of the original
instrument is refused. (8a)
A: Pretty Maya becomes agent of Sexy Regina. So, the

defense of unauthorized signature is automatically out.
3.)
At the time it was signed, it was in words and figures

exactly as set out in the pleading of the party relying
upon it;
Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of
P50,000 on a promissory note. Mr. Tiamzon admitted
liability but only to the amount of P5,000. Mr. Tiamzon
used falsification as a defense but his answer was not
verified. What is the effect?
A: Mr. Tiamzon admits the genuiness of the promissory
note that it was really P50,000.
Q: Does every pleading have to be under oath?
4.)
The document was delivered; and
A: GENERAL RULE: NO.
5.)
The formal requisites of law, such as seal,

acknowledgement (notarization) or revenue stamp
which it lacks, are waived by it.
EXCEPTION: Except when the law requires it. Example: Section 8,

Rule 8.
The SC said in HIBBERD that if you admit the genuineness and due
execution of the actionable document, defenses which are
inconsistent with genuineness and due execution are deemed
automatically waived. Meaning, any defense which denies the
genuineness or due execution of the document is deemed
automatically waived.
EXAMPLE: If the plaintiff sues you based on a promissory note

which is properly pleaded under Section 7 and you would like to
contest the genuineness and due execution of the note like when
the figure was altered to P20,000 instead of P1,000 only, so there
is falsification, then you must deny the genuiness and due
execution in your answer specifically and most importantly your
answer must be VERIFIED AND UNDER OATH.
Q: What are the defenses which are no longer allowed once you
admit the genuineness and due execution of the actionable
document?
To contest:
A: The following:
(a)
You must specifically deny the genuineness and due

execution of the document under oath; and
(b) You set forth what you claim to be the facts.
1.)
If the denial is not verified and under oath, the genuineness and
due execution of the promissory note is deemed admitted.
2.)
Q: When you say you have admitted the genuiness and due
execution of the document, what are the specific facts that you
have deemed admitted?
3.)
4.)
5.)
6.)
A: The answer is found in the landmark case of HIBBERD vs. RHODE

(32 Phil. 476):
1.)
The party whose signature it bears signed it;
142
The signature appearing in the document is a

forgery;
In case it was signed by an agent in behalf of the
corporation or partnership, or a principal, the
signature was unauthorized;
The corporation was not authorized under its
charter to sign the instrument;
The party charged signed it in some other capacity
than that alleged in the pleading; and
It was never delivered. (Hibberd vs. Rhode, supra)
The document was not in words and figures as set
out in the pleadings (Imperial Textile Mills vs. CA
183 SCRA 584)

Q: Does it mean to say that when you admit impliedly the

genuineness and due execution of the actionable document, you
have no more defense?
WHEN DENIAL NOT UNDER OATH STILL VALID

Q: When may a simple denial suffice? Meaning, what are the
instances where the denial of the genuineness of the document,
though not under oath, is valid?
A: NO. What are no longer available are defenses which are

inconsistent with your own admission of the genuineness and due
execution of the actionable document like forgery, because you
cannot admit that the document is genuine and at the same time
allege that it is forged. According to the SC in HIBBERD, you may
still invoke defenses provided the defenses are NOT inconsistent
with your admission of the authenticity of the document.
A: Section 8 says, the requirement of an oath does not apply:

1.)
EXAMPLE: Ms. Guadalope filed a case against Ms.

Castillo based on a contract entered by them. But
before Ms. Guadalope filed the case, Ms. Castillo
died. So Ms. Guadalope filed against the heirs. The
heirs realized that the signature of Ms. Castillo in
contract as forged. Even if the answer of the heirs is
not under oath, they can still prove forgery because
they are not party to the instrument.
Q: What defenses may be interposed notwithstanding admission of

genuiness and due execution of an actionable document as
aforesaid?
A: In the case of HIBBERD, the following:
1.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
9.)
10.)
11.)
12.)
13.)
14.)
15.)
16.)
payment;
want or illegality of consideration;
fraud;
mistake;
compromise;
statute of limitation;
estoppel;
duress;
minority; and
imbecility
usury
statute of frauds
prescription
release
waiver
former discharge in bankruptcy
When compliance with an order for an inspection

of the original instrument is refused;
3.)
When the document to be denied is not classified

as an actionable document but merely an
evidentiary matter. This is because when the
document if not actionable, there is no need to
follow Section 7.
EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is
the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an
actionable document for his defense. He claims to have paid the
loan and have attached a copy of the RECEIPT to his answer. The
plaintiff looks at the document and realizes that his signature in the
receipt is forged.
A: YES. In the following cases, the implied admission is deemed

waived:
2.)
2.)
REPLY; GENERAL RULE: OPTIONAL;
Q: May the benefit of the admission of genuineness and due

execution of an actionable document be waived? If so, in what
instances?
1.)
When the adverse party does not appear to be a

party to the instrument;
Q: What should the plaintiff do?
Where the pleader presented witnesses to prove

genuiness and due execution and the adversary
proved, without objection, the contrary. (Yu Chuck
vs. Kong Li Po, 46 Phil. 608);
A: Based on Section 8, the plaintiff must deny the genuineness of

the receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny
under oath the genuiness and due execution of the receipt?
Where the pleader fails to object to evidence

controverting the due execution. (Legarda Koh vs.
Ongsiaco, 36 Phil. 185)
A: Plaintiff should file a REPLY and it must be under oath. If he will

not file a reply, the receipt is impliedly admitted to be genuine.
In other words, the lawyer of the defendant does not remember

Section 8 and therefore the denial is improper. But the lawyer of
the plaintiff did not also remember Section 8 that when there was
evidence of forgery, he failed to object. So, the incompetence of
the both lawyers cancel each other. That is what happens if the
lawyer does not know.
Q: But the plaintiff may argue that under Rule 6, Section 10 the
filing of a reply is optional. How do we reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6
because the former is a specific provision that applies only to
actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?
143

A: When the defendant anchors his defense on an actionable

document and plaintiff will deny the genuineness and due
execution of such document.
FIRST MODE: A defendant must specify each material allegation

of fact the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters upon
which he relies to support his denial
SPECIFIC DENIAL
Meaning, you deny the allegation in the complaint but you must
state the basis of your denial that it is not true because this is
what is true. So you state your own side, your own version. The
purpose there is to lay your cards on the table to make it fair to the
other side.
We will relate Section 10 with Section 5 of Rule 6:

Sec. 5. Defenses. - Defenses may either be
negative or affirmative.
a.
A negative defense is the specific denial

of the material fact or facts alleged in
the pleading of the claimant essential to
his cause or causes of action.
xxx
Q: What happens if a denial violates this first mode? Meaning, the

pleader did not set forth the substance of the matters relied upon
to support his denial.
A: That is known as GENERAL DENIAL and it will have the effect of
automatically admitting the allegations in the complaint.
In an answer, defenses may either be negative or affirmative.
Q: Suppose the pleader will say, Defendant specifically denies the

allegations in paragraph 2,4,7 without any further support for
the denial. Is the denial specific?
Q: Define negative defense.

A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant
denies the statement in the complaint by stating the facts and the
reason/s on which his denial is based.
A: NO. A denial does not become specific simply because he used

the word specific. (Cortes vs. Co Bun Kim, 90 Phil. 167) What
makes a denial specific is compliance with Section 10.
Q: How is a specific denial done?

A: Rule 8, Section 10:
SECOND MODE: Where a defendant desires to deny only a part of

an averment, he shall specify so much of it as is true and material
and shall deny only the remainder.
Sec. 10. Specific denial. A defendant must

specify each material allegation of fact the
truth of which he does not admit and,
whenever practicable, shall set forth the
substance of the matters upon which he
relies to support his denial. Where a
defendant desires to deny only a part of an
averment, he shall specify so much of it as is
true and material and shall deny only the
remainder. Where a defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment
made in the complaint, he shall so state, and
this shall have the effect of a denial. (10a)
Sometimes an allegation may consist of 2 or more parts. Therefore

the answer may admit part 1 but part 2 is denied. Or, the substance
of the allegation is actually admitted by the qualification there is
denied.
EXAMPLE: Plaintiff alleges that the Defendant is in possession of
the property under litigation in bad faith. Now, the defendant may
admit that the property is in his possession but he denies the
qualification in bad faith possession is not in bad faith. Based on
that, the defendant should say, Defendant admits that portion of
paragraph no. 2 that he is in possession of the property in question;
but denies that he is a possessor in bad faith or something to that
effect.
Purpose of specific denial

THIRD MODE: Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall
have the effect of a denial
The purpose is to make the defendant 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 (Aquintey
vs. Tibong, GR No. 166704, December 20, 2006)
Meaning, I am not in a position to admit or to deny because I have

no knowledge. How can I admit or deny something which I do not
know?
Q: So what are the modes of specific denial?

EXAMPLE: Plaintiff claims for moral damages because Defendant
destroyed his reputation. Defendant does not know that Plaintiff
had sleepless nights, wounded feelings, serious anxiety, etc. Here,
Defendant cannot admit or deny those.
A: Under Section 10, there are three (3) MODES OF SPECIFIC

DENIAL:
144

I have read pleadings where the pleader would say, Defendant has
no knowledge or information sufficient to form a belief as to the
truth of the allegation in paragraphs 6, 7, 8, 9 of the complaint
and therefore he denies the same. Actually, there is something
wrong there. How can you deny something that you have no
knowledge of. Just state, I have no knowledge. Then period! And
is has the automatic effect of a denial.
existence of the 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:
(a) A denial of an actionable document (Sec. 8); and
(b) A denial of allegations of usury in a complaint to recover
usurious interest (Sec. 11)
However, the SC warned that he third mode of denial should be

done in good faith. If the fact alleged is such that it is within your
knowledge, it is impossible that it is not within your knowledge,
you cannot avail of the third mode of denial. Otherwise, if you will
avail of the third mode in bad faith, your denial will be treated as
an admission. That is what happened in CAPITOL MOTORS vs.
YABUT (32 SCRA 1).
The allegations of usury which requires a specific denial under

oath are:
(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, R 8)
In CAPITOL MOTORS, suppose I file a case against you, Defendant

borrowed money from plaintiff in the sum of P10,000 payable one
year from said date. And then you say, I have no knowledge or
information There is something wrong there. What you are
trying to say there is I do not know whether I borrowed money
from you or not.
Matters not deemed admitted by the failure to make a specific

denial:
a)
b)
How can that be? It is either you borrowed money or you did not!
That is why the SC said in CAPITOL MOTORS, if you borrowed
money, you say so. And if you did not, deny it. And then I will allege
there, The defendant have made partial payments. Then you will
say, I have no knowledge. My golly! You do not even know
whether you paid me? In other words, talagang evasive bah! You
are trying to be clever and evasive. And if you do that, all your
denials will be treated as admissions. That is the warning in the
third mode.
c)
The amount of unliquidated damages (Sec.11);

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 R 8);
Non-material averments or allegations are not deemed
admitted because only material allegations have to be
denied. (Sec. 11)
Sec. 11. Allegations not specifically denied
deemed admitted. Material averment in the
complaint, other than those as to the amount
of unliquidated damages, shall be deemed
admitted when not specifically denied.
Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not
denied under oath. (1a, R9)
Negative Pregnant
A negative pregnant does not qualify as a specific denial. It is
conceded to be actually an admission.
While the law says material averment in the complaint, this rule
extends to counterclaims, cross-claims and third-party complaints.
(Valdez vs. Paras, L-11474, May 13, 1959)
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.
The reason for the rule on specific denial is that, if there is a

material averment in the complaint and was not specifically denied,
it is deemed admitted. However under Section 11, there are
averments in the complaint which are not deemed admitted even
when not specifically denied.
Example:
A complaint alleges:
Plaintiff extended a loan to Defendant in the amount of
P500,000.00 on July 27, 2006 in Cebu City.
GENERAL RULE: Material averment in a complaint shall be deemed

admitted when not specifically denied.
The defendant in his Answer states:

EXCEPTION: Instances when averments in the complaint are not
deemed admitted even when not specifically denied:
Defendant specifically denies that Plaintiff extended a loan to

Defendant in the amount of P500,000.00 on July 27, 2006 in Cebu
City.
1.)
2.)
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
3.)
145
Amount of unliquidated damages;

Immaterial averments (Worcester vs. Lorenzana, 56
O.G. 7932, Dec. 26, 1960)
Evidentiary matters; because a party is only obliged
to aver ultimate facts; (Agaton vs. Perez, L19548, Dec. 22, 1966)

4.)
Conclusions of facts or law.
a pleading or a portion thereof is sham or false, redundant,

immaterial, impertinent, or a scandalous matter is inserted in the
pleading, is deemed erased. This is related to Rule 7, Section 3,
third paragraph:
Lets discuss the first exception AMOUNT OF UNLIQUIDATED

DAMAGES is not deemed admitted even if not specifically denied.
So if the damages are liquidated, they are deemed admitted.
Examples of unliquidated damages are moral and exemplary
damages. Or expenses which I incurred in the hospital. Those are
unliquidated damages. They are always subject to evidence. You
have to prove how much amount you are entitled to. That is why
they are not deemed admitted even if not specifically denied.
RULE 7, Sec. 3. Signature and address. x x x x

An unsigned pleading produces no legal
effect. However, the court may, in its
discretion, allow such deficiency to be
remedied if it shall appear that the same was
due to mere inadvertence and not intended
for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly
report to the court a change of his address,
shall be subject to appropriate disciplinary
action.
So if you are claiming P1 million damages for sleepless nights or

besmirched reputation, and I did not specifically denied such claim,
it does not mean that you are automatically entitled to P1 million.
Hindi yan puwede. You have to present evidence that you are really
entitled to P1 million. Yaan!
On the other hand, an example of liquidated damages is an
obligation with a penal clause. For example in our contract, it is
stipulated that in case you cannot comply with your obligation, you
will pay me P1 million. So if you failed to specifically deny it, then
you are deemed to have admitted that I am entitled to P1 million.
There is no need for computation because the amount is already in
the contract beforehand. The contract itself would show how much
I am entitled.
So, if your pleading contains scandalous or indecent matters, the

lawyer who files it may be subjected to appropriate disciplinary
actions.
Q: What if it is the reply is the one which contains scandalous
matter?
Section 11 also says, Allegations of usury in a complaint to recover

usurious interest are deemed admitted if not denied under oath.
Usury means you charge interest above the legal interest provided
by the usury law. If you want to deny my charge of usury, your
answer must be under oath. So, this is the second instance where
a denial should be verified.
A: A motion to strike may still be filed by the defendant within 20

days after the reply.
NOW, I wonder why this provision is here when as early as 1983 in

the case of LIAM LAW vs. OLYMPIC SAW MILL (129 SCRA 439), that
usury is no longer existing and the SC stated in that case that the
provision of the Rules of Court in usury are deemed erased or
superseded. Obviously, the SC forgot what it said in the 1983.
(Ulyanin!!)
Sec. 12. Striking out of pleading or matter
contained therein. Upon motion made by a
party before responding to a pleading or, if
no responsive pleading is permitted by these
Rules, upon motion made by a party within
twenty (20) days after the service of the
pleading upon him, or upon the court's own
initiative at any time, the court may order
any pleading to be stricken out or that any
sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken
out therefrom. (5, R9)
Before answering, the defendant can file a motion to strike out a
pleading or a portion of a pleading. Striking a pleading means that
the pleading will be deemed erased as if it was never filed. Or if a
portion of the pleading be ordered stricken out or expunged where
146

Rule 9
These defenses may be raised at any stage of the proceedings even

for the first time on appeal EXCEPT that lack of jurisdiction over the
subject matter may be barred by laches (Tijam vs. Sibonghanoy GR
No. L-21450, April 15, 1968).
EFFECT OF FAILURE TO PLEAD

Section 1. Defenses and objections not
pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in
the answer are deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgment or by
statute of limitations, the court shall dismiss
the claim. (2a)
Now, the traditional rule to remember notwithstanding the

SIBONGHANOY Doctrine, is that, when there is a defect in the
jurisdiction of the court over the subject matter, the defect can be
raised at any stage of the proceeding even for the first time on
appeal (Roxas vs. Raferty, 37 Phil. 957). This is because everything
is null and void. Jurisdiction over the subject matter cannot be
conferred by agreement between the parties, by WAIVER, by
silence of the defendant.
LITIS PENDENTIA. You file an another case while another action is
pending between the same parties for the same cause. That is
actually splitting a cause of action because there is already an
action and then you file another action. The action can be
dismissed on the ground that there is a pending action.
GENERAL RULE: Defenses or objections not pleaded in a motion to

dismiss or on answer are deemed waived. If you do not plead your
defense, the same is deemed waived. The court has no jurisdiction
over the issues.
A pending action to annul a mortgage is not a bar to an action for

foreclosure of the same mortgage for the reason that, although the
parties are or may be the same, the rights asserted and the relief
prayed for in the two actions are dissimilar.
EXAMPLE: In a collection case against you, you did not raise the
defense of payment in your answer. But during the trial, you
attempted to prove that the loan has already been paid, that
cannot be done because the defense of payment is deemed waived
because you did not raise it in your answer. In other words, the
court never acquired jurisdiction over the issue.
A plea of the pendency of a prior action (litis pendencia) is not

available unless the prior action is of such a character that, had a
judgment been rendered therein on the merits, such a judgment
would be conclusive between the parties and could be pleaded in
bar of the second action. The rule is applicable, between the same
parties, only when the judgment to be rendered in the action first
instituted will be such that, regardless of what party is successful, it
will amount to res judicator against the second action (Hongkong
Shanghai Bank v. Aldecoa and Co., GR No. 8437, March 23, 1915).
So, there is no such thing as a surprise defense because the

defense must be pleaded. If you want to surprise the plaintiff
during the trial by not raising your defense in your answer, you will
be the one who will be surprised because the court will not allow
you. When the parties go to court, the plaintiff already knows
what are the defenses. They are already in the answer.
RES ADJUDICATA There was already a prior final judgment then

you file another case regarding the same issue. That is also splitting
a cause of action.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the
court despite the fact that they are not raised in the motion to
dismiss or answer?
PRESCRIPTION is not found in the old rule but is taken from

decided cases. Among which are the cases of
A: Under Section 1, Rule 9, the following:

1.)
2.)
3.)
4.)
PNB vs. PEREZ (16 SCRA 279) & PEPSI COLA vs. GUANZON
(172 SCRA 571)
That the court has no jurisdiction over the subject

matter;
That there is another action pending between the
same parties for the same cause (litis pendentia);
That the action is barred by prior judgment (res
adjudicata); and
That the action is barred by statute of limitation
(prescription).
HELD: The rule on waiver of defenses by failure to plead in

the answer or in a motion to dismiss does not apply when the
plaintiffs own allegations in the complaint show clearly that
the action has prescribed in such a case the court may motu
propio dismiss the case on the ground of prescription.
Q: Can the court dismiss the action based on any of these grounds
without the filing of a motion to dismiss?
Take note that the exceptions can be raised at any time during or
after the trial, or even for the first time on appeal. In other words,
the court shall dismiss the claim if any of the foregoing grounds
appears from the pleadings or the evidence on record.
A: YES. It would seem so because the second sentence says, When

it appears from the pleadings or the evidence on record the
court shall dismiss the claim. (This is an important change)
147

Under the 1964 Rules, one of the grounds that you can raise at any
stage of the proceeding before judgment is failure to state a cause
of action, but it disappears under the new rules. Does it mean to
say that you cannot raise it anymore? NO. It can still be raised
because it can be taken care of by another rule Rule 33 on
Demurrer.
during the hearing and to cross-examine the witnesses presented.

However, it would not amount to a waiver of the defendants right
to present evidence during the trial dates scheduled for the
reception of evidence for the defense. 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 vs. Addio Properties, Inc. GR
1712827, September 17, 2008)
Sec. 2. Compulsory counterclaim, or crossclaim, not set up barred. A compulsory

counterclaim, or a cross-claim, not set up
shall be barred. (4a)
Requisites before a party may be declared in default:

See discussions on Rule 6, Sections 7 and 8 on counterclaim and
cross-claims, respectively.
1.
RULE ON DEFAULT
2.
Sec. 3. Default; declaration of. If the
defending party fails to answer within the
time allowed therefor, the court shall, upon
motion of the claiming party with notice to
the defending party, and proof of such
failure, declare the defending party in
default. Thereupon, the court shall proceed
to render judgment granting the claimant
such relief as his pleading may warrant,
unless the court in its discretion requires the
claimant to submit evidence. Such reception
of evidence may be delegated to the clerk of
court. (1a, R18)
3.
4.
5.
6.
The Court must have acquired jurisdiction over the

person of the defendant thru a valid service of summons
or voluntary appearance;
The defending party must have failed to file his answer
within the reglementary period or within the period
fixed by the court;
there must be a motion to declare the defendant in
default;
The defending party must be notified of the motion to
declare him in default (Sec. 3 R 9)
There must be a hearing of the motion to declare the
defendant in default; and
There must be proof of such failure to answer.
Where no defaults are allowed:

1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
xxxxxx
4. Special Civil Actions of certiorari, prohibition and mandamus

where comment instead of an answer is required to be filed; and
A defending party is declared in DEFAULT if he fails to answer the

complaint within the time allowed therefor. The rule on answer is
found in Rule 11. And under Rule 11 as a rule, you have 15 days to
file an answer counted from the time you are furnished a copy of
the complaint together with the summons
5. Summary Procedure.
The required hearing is mandated by Sec. 4 of Rule 15 which states:
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.
It is the failure of the defendant to answer within the proper

period, not his failure to appear nor failure to present evidence
which is the basis of a declaration of default.
It does not occur from the failure of the defendant to attend either
the pre-trial or the trial.
Failure to file an answer under the Rule on Summary Procedure

Under this rule, the defendant 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, 1991Rule on Summary
Procedure). This represents a principal distinction between default
in regular civil proceedings and the rule on summary procedure.
If the period to answer lapsed and there is no answer, the plaintiff

will move to declare the defendant in default on the ground of
failure to file an answer to the complaint. So, the court will issue
an order of default declaring you as a defaulted defendant.
The defendants non-appearance in the hearing and the failure to
adduce evidence does not constitute default when an answer has
been filed within the reglementary 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 defendants right to object to the evidence presented
Also, under the Rule on Summary Procedure, the plaintiff is

prohibited from filing a motion to declare the defendant in default
148

(Sec. 19[h], 1991 Rule on Summary Procedure). This is another

significant departure from the regular rule.
court where the case is pending shall

personally receive the evidence to be
adduced by the parties. However, in default
or ex parte hearings, and in any case where
the parties agree in writing, the court may
delegate the reception of evidence to its clerk
of court who is a member of the bar. The
clerk of court shall have no power to rule on
objections to any question or to the
admission of exhibits, which objections shall
be resolved by the court upon submission of
his report and the transcripts within ten (10)
days from termination of the hearing. (n)
Effect of a declaration/order of default

1.
2.
3.
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);
While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings (Sec. 3[a], Rule 9)/. It is submitted that he
may participate in the trial, not as a party but as a
witness (Riano).
A declaration of default is not an admission of the truth
or the validity of the plaintiffs claims (Monarch
Insurance vs. CA 333 SCRA 7 [2000]; Vlason Enterprises
Corp. vs. CA 310 SCRA 26).
The reception of evidence maybe delegated to the clerk of court

but the clerk of court must be a lawyer, that is the condition. So if
he is not a member of the bar, he is not authorized to conduct or
hear an ex-parte reception of evidence.
Take note that the word defending party applies not only to the
original defendant but even to the cross-defendant or defendant in
a counterclaim.
SUMMARY: Steps when the defendant fails to file an answer within

the time allowed:
Action of the court after the declaration/order of default
1.
2.
3.
It can do either of the following:

1.
2.
To proceed to render judgment, or

To require the plaintiff to present his evidence ex parte.
Now, with NOTICE to the defending party is a new one. You must
furnish a copy to the defending party of your motion to order the
defendant in default which abrogates previous rulings.
Motion to declare defendant in default;

Declaration or Order of default; and
Rendition of Judgment by Default or judgment based
on the complaint of the plaintiff UNLESS court requires
the claimant to submit evidence (ex-parte presentation
of plaintiffs evidence)
However, when should the court dispense with the ex-parte

presentation of evidence and when should it require the claimant
to submit evidence being discretionary?
Q: Suppose the defendant filed an answer but during the trial, he

failed to appear. May he be declared in default?
According to Inigo, in cases which are simple, presentation of

evidence ex-parte can be dispensed with like collection cases.
A: NO, because the ground for default is failure to file an answer.

The correct procedure is for the trial to proceed without him. (Go
Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call
EX-PARTE reception of evidence. Only one side will be heard.
But in controversial cases, like recovery of a piece of land the judge

ought not automatically decide in your favor simply because of
failure to answer by the defendant. The judge may still want to
hear plaintiffs evidence.
BAR QUESTION: If the defendant is declared in default for failure to

file an answer is he deemed to have admitted the allegations in the
complaint to be true and correct?
Q: If a defendant files an answer but did not furnish a copy of the

answer to the plaintiff, can the plaintiff move to declare the
defendant in default?
A: YES, because the law NOW says, the court shall proceed to
render judgment granting such claimant such relief as his pleading
may warrant. The reception of plaintiffs evidence is already
dispensed with. That is the GENERAL RULE. That is the same as the
summary rules and judgment on the pleadings and the court can
grant the relief without presentation of evidence.
A: YES, because the answer is deemed to have not been legally

filed. It was not in accordance with the Rules of Court. (Gonzales vs.
Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a
copy of the answer because in the case of
RAMIREZ vs. COURT OF APPEALS 187 SCRA 153
HOWEVER under Section 3, it is discretionary upon the court to

require the claimant to submit evidence. EX-PARTE RECEPTION of
evidence is OPTIONAL for the court. And such reception of
evidence may be delegated to the clerk of court. This is related to
Section 9, Rule 30:
HELD: The failure to furnish a copy of the answer to the

adverse party in itself is sufficient or valid basis for
defendants default.
Rule 30, Sec. 9. Judge to receive evidence;

delegation to clerk of court. The judge of the
149

Effect of pendency of a Motion to Dismiss or for Bill of Particulars
Answer filed out of time may be admitted
Q: May a defendant be declared in default while a motion to

dismiss (Rule 16) or a motion for bill of particulars (Rule 12)
remains pending and undisposed of?
Where there is no declaration of default, answer may be admitted

even if filed out of time. Where answer has been filed, there can be
no declaration of default anymore. (Guillerma S. Sablas vs. Esterlita
S. Sablas and Rodulfo Sablas, GR No. 144568, July 3, 2007)
A: NO, because under the filing of a motion to dismiss or motion

for bill of particulars interrupts the running of the period to answer.
It will run again from the moment he receives the order denying his
motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87
Phil. 437)
(a) Effect of order of default. - A party in

default shall be entitled to notice of
subsequent proceedings but not to take part
in the trial. (2a, R18)
But said motions must follow the requirements otherwise they will
be treated as mere scraps of paper and will not toll the running of
the period to answer.
In the case of
So if you are declared in default, you cannot take part in the trial.
You lose your standing in court, you cannot cross-examine the
witness of the plaintiff assuming there is a reception of evidence.
You cannot object to his evidence. You cannot even present your
own evidence when you are in default.
DEL CASTILLO vs. AGUINALDO 212 SCRA 169 [1992]
Right of a party in default
FACTS: The defendant filed a motion to dismiss under Rule 16

but his motion to dismiss did not contain notice of time and
place of hearing and the motion was denied. Can he file an
answer after filing the motion to dismiss?
He is entitled to notice of:

1. Motion to declare him in default;
2. Order declaring him in default;
HELD: NO. He can be ordered in default. The motion is a

useless piece of paper with no legal effect.
3. Subsequent proceedings; and

4. Service of final orders and judgments.
Any motion that does not comply with Rule 16

should not be accepted for filing and if filed, is not
entitled to judicial cognizance and does not affect
any reglementary period. Not having complied with
the rules, the motion to dismiss filed by the
defendant did not stay the running of the
reglementary period to file an answer.
Note: A defendant declared in default cannot take part in the trial,

but he cannot be disqualified from testifying as a witness in favor
of non-defaulting defendants (Cavile vs. Florendo GR No. 73039,
Oct. 9, 1987)
If the defendant was declared in default upon an original
complaint, the filing of the amended complaint results in the
withdrawal of the original complaint, hence, the defendant is
entitled to file an answer to the amended complaint as to which he
was not in default.
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEVT CORP.

214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15
days, the defendant filed a motion to dismiss on the 8th day.
It was denied. So there is still 7 days to file an answer. On the
15th day, instead of filing an answer, he filed a motion for
reconsideration but such motion was also denied. Can he still
file an answer?
Judicial discretion to admit answer filed out of time

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 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. 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. In fact, the rule is that the answer should be admitted
where it is filed before a defending party is declared in default and
no prejudice is caused to the other party and that there is no
showing that the defendant intends to delay the case (Sablas vs.
Sablas GR 144568, July 3, 2007) The hornbook rule is that default
judgments are generally disfavored (Paramount Insurance Corp.,
vs. A.C. Ordonez Corporation, GR No. 175109, August 6, 2008).
HELD: NO MORE. The filing of the motion to dismiss

interrupted the period to file an answer. When you receive an
order, you still have the balance to file your answer. And you
did not file an answer instead, you file a motion for
reconsideration. You took the risk. So defendants motion for
reconsideration which merely reiterated his ground in the
motion to dismiss did not stay the running of the period to file
an answer.
150

Current Judicial Trend on Default
A: He may file a motion to set aside the order of default at any

time after notice thereof and before judgment.
The current judicial trend is to avoid defaults and thus, courts are
enjoined to be liberal in setting aside orders of default.
(Ampeloquio vs. CA 333 SCRA 465
SUMMARY: Steps the defendant should take to set aside the order
of default:
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 vs. CA GR 139884 February 15, 2001) because suits
should as much as possible, be decided on the merits and not on
technicalities (Samartino vs. Raon GR 131482 July 3, 2002). Thus, in
practice, an answer under oath containing the defenses of the
defendant, may under the rules on liberal interpretation, be
deemed as equivalent of an affidavit of merit.
1.
2.
3.
File a motion to lift or set aside the order of default. The

motion must be verified and under oath;
He must explain why he failed to file an answer due to
FAME; and
He must also show that he has a meritorious defense.
In such a case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of justice
(Sec. 3b)
Remedies of a defending party declared in default:
The policy of the law is to have every litigants 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 vs.
Sablas GR 144568 July 3, 2007).
(1) Remedy after notice of order and before judgment The

defendant must file a motion under oath to set aside the
order of default and show that
a. the failure to answer was due to fraud,
accident, mistake or excusable negligence
(FAMEN) and that
b. the defendant has a meritorious defense, i.e.,
there must be an affidavit of merit (Sec. 3[b],
Rule 9); Villareal vs. CA 295 SCRA 511;
Republic vs. Sandiganbayan GR No. 148154,
December
17,
2007;
Republic
vs.
Sandiganbayan, 540 SCRA 431)
HOW TO LIFT ORDER OF DEFAULT

(b) Relief from order of default. - A party
declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order of
default upon proper showing that his failure
to answer was due to fraud, accident,
mistake or excusable negligence and that he
has a meritorious defense. In such case, the
order of default may be set aside on such
terms and conditions as the judge may
impose in the interest of justice. (3a, R18)
(2) Remedy after judgment and before judgment becomes

final and executor The defendant may file a motion for
new trial under Rule 37. He may also appeal from the
judgment as being contrary to the evidence or the law
(Talsan Enterprises, Inc. vs. Baliwag Transit, Inc. 310
SCRA 156; Lina vs. CA 135 SCRA 637)
(3) Remedy after the judgment becomes final and executory
The defendant may file a petition for relief from
judgment under Rule 38 (Balangcad vs. Justices of the CA
GR No. 83888, February 12, 1992; Republic vs.
Sandiganbayan [supra])
Q: What is the remedy of a defendant who has been declared in

default?
A: One remedy under Section 3 paragraph [b] is that, provided
there is still no default judgment, he can still file a motion to set
aside the order of default upon a proper showing that his failure to
answer was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable
negligence) and that he has a meritorious defense. [The discussions
on FAME is in Rule 37 New Trial or Reconsideration]
(4) Where the defendant has however, been wrongly or

improvidently declared in default, the court can be
considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction and when the lack of
jurisdiction is patent in the face of the judgment or from
the judicial records, he may avail of the special civil
action of certiorari under Rule 65 (Balangcad vs. Justices,
supra)
Meaning, even if you are a victim of FAME, if you have no

meritorious defense, the court will not lift the order of default.
Implied Lifting of the Order of Default
Upon proof, the court will set aside or lift the order of default and
will give the defendant an opportunity to answer, where he will
plead his supposed meritorious defenses. In effect, he regains his
standing in court.
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 courts 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 justice. It was the operative act lifting the default
order and thereby reinstating the position of the original defendant
Q: When can the defendant avail of this remedy?
151

whom respondent is representing, founded on the courts

discretionary power to set aside orders of default.
litigation totally common with them in kind and in amount whether

favorable or unfavorable (Remigia Grageda, et al., vs. Hon. Nimfa
Gomez and Haudiny Grageda, GR No. 169536, Sept. 21, 2007).
Flow Chart of Remedies from Judgment by Default

The best example would be a promissory note signed by both
Bentong and Bayani and they bound themselves solidarily. Both of
them were sued. Bentong answered while Bayani did not, hence he
is in default. Can there be a default judgment against Bayani? NO,
there will still be a trial based on the answer of Bentong. In effect,
Bentong will defend not only himself but also Bayani.
Judgment by default
Motion for New Trial or Reconsideration at any time after service of
judgment by default and within 15 (30) days therefrom
Failure to file Motion for New Trial/Reconsideration or Denial of said
Motion
Q: Suppose during the trial, Bentong proved that the obligation has
been extinguished, which is also applicable to Bayani, and the
complaint is dismissed, what is the effect?
Perfect Appeal from said judgment by default within the balance of

said 15 (30) day period
Failure to Appeal without defendant's fault
A: Both Bentong and Bayani will win the case. So Bayani will be
benefited by the answer of his co-defendant Bentong. Hence, there
is still a possibility that a defaulted defendant can win based on our
example.
Petition for Relief from Judgment within 60 days from notice of

judgment but within 6 months from entry thereof
Annulment of Judgment under R 47
On the other hand it is absurd if the answer of Bentong will not

benefit the defaulting defendant.
EXAMPLE: Gary filed a case against Bentong and Bayani based on a
promissory note on a loan secured by both, and Bayani defaulted.
Bentong answered alleging payment. Suppose, Bentong proved
such defense, the effect is both Bentong and Bayani are absolved. If
you say that Bayani should lose because the answer of Bentong will
not benefit Bayani, there will be two conflicting decisions: Bayani
is in default and thus, should pay the loan; and there is no more
loan as far as Bentong is concerned. Do you mean a loan is paid
and at the same time unpaid? Thats absurd!
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading
asserting a claim states a common cause of
action against several defending parties,
some of whom answer and the others fail to
do so, the court shall try the case against all
upon the answers thus filed and render
judgment upon the evidence presented. (4a,
R18)
NOTE: that to apply the principle, there must be a common cause

of action. If there is no common cause of action, while there may
be a trial, the answer of Bentong is only for him. After the trial,
Bentong might be absolved from liability but the defaulting
defendant Bayani will be held liable because Bentongs answer
does not cover Bayani. That is when there is no common cause of
action. In the case of
This presupposes that there are two or more defendants. Say, one
or some of the defendants made an answer and the others did not.
So, one or some of the defendants were declared in default, the
others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer.
Bayani did not. Bayani was declared in default but there can be no
judgment against Bayani in the meantime because under
paragraph [c], the case will go to trial based on the answer of
Bentong. The case will be tried against both Bentong and Bayani
based on the answer of Bentong.
CO vs. ACOSTA (134 SCRA 185 [1985]) reiterating the case of

LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by
Gary for a loan evidenced by a promissory note. Bentong filed
an answer but Bayani defaulted. The case was tried based on
Bentongs answer. Gary move to drop Bentong from the case
but retained Bayani, the defaulted defendant so that Gary can
secure an immediate judgment.
The principle here is that, the answer filed by the answering

defendant will automatically benefit the non-answering defendant.
The defense of Bentong will also be Bayanis defense. Anyway
there is a common or identical cause of action.
ISSUE: Is the motion of Gary proper?
Effect of partial default

In all instances where a common cause of action is alleged against
several defendants, some of whom answer and the others do not,
the latter or those in default acquire a vested right not only to own
the defenses interposed in the answer of their co-defendant or codefendants not in default but also to expect a result of the
HELD: NO. When there is a common cause against two or

more defendants, if you drop the case against one, you drop
the case against all. Selection is not allowed. To drop Bentong
means that the cause of action against him is weak. Why
should one drop somebody if a case against such person is
152

meritorious? If such is the fact, necessarily the cause of action

against the other is also weak the fact there is actually a
common cause of action.
HELD: NO. The insurance company is not an indispensable

party.
It is true that all of Imsons claims in civil case is premised on
the wrong committed by defendant truck driver. Concededly,
the truck driver is an indispensable party to the suit. The other
defendants, however, cannot be categorized as indispensable
parties. They are merely necessary parties to the case. It is
easy to see that if any of them had been impleaded as
defendant (meaning, the insurance company or the owner
was impleaded), the case would still proceed without
prejudicing the party not impleaded.
However, the ruling in ACOSTA should not be confused with the

ruling in
IMSON vs. CA [1996 BAR] - 239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was
bumped by a Hino Truck causing injury to Imson and totally
wreaking his car. So he filed an action for damages against
several defendants. He impleaded all of them the driver, the
bus company owner and the insurance company. The
insurance company filed an answer but the owner and the
driver did not. So both the owner and the driver were
declared in default.
Thus, if petitioner did not sue the insurance company, the

omission would not cause the dismissal of the suit against the
other defendants. Even without the insurer, the trial court
would not lose its competency to act completely and validly
on the damage suit. The insurer, clearly, is not an
indispensable party. It is a necessary party.
Subsequently, lmson and the insurance company entered into

a compromise agreement wherein the latter paid him P70,000
which was its total liability under the insurance contract but
constituted only a part of the total claim.
(d) Extent of relief to be awarded. - A

judgment rendered against a party in default
shall not exceed the amount or be different
in kind from that prayed for nor award
unliquidated damages. (5a, R18)
So when the case (between Imson and the insurance

company) was eventually dismissed because of the
compromise agreement, the bus company owner also moved
to dismiss the case against him and the driver, arguing that
since they are all indispensable parties under a common cause
of action, the dismissal of the case against the insurance
company should likewise result to the dismissal of the case
against them citing the case of ACOSTA and RAMOLETE.
This is what we call LIMITATIONS on a default judgment:

1)
2)
3)
ISSUE #1: Is there a common cause of action among the three

of them?
The default judgment should not exceed the amount

prayed for in the complaint;
The default judgment should not be different in kind
from that prayed for in the complaint;
The default judgment should not award unliquidated
damages.
Extent of relief in a judgment by default
HELD: The owner is wrong. There is NO common cause of

action. The cause of action against the driver is based on
quasi-delict under Article 2178 of the Civil Code. The liability
against the owner is also based on quasi-delict but on another
provision of the Civil Code Article 2180 (the liability of the
employer for the delict or wrong of the employee) So, the
liability of the owner and the driver is based on quasi -delict
but under separate provisions of the Civil Code.
If the complaint seeks to recover P1 million but the evidence of the

plaintiff shows a right to recover P1.5 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]; Vlason
vs. CA 310 SCRA 26)
Q: In the complaint, the claim is P300,000. The defendant
defaulted. The court required the plaintiff to present his evidence
and during the trial, the latter proved P500,000 total claim. Can the
court award P500,000 claim as proved?
Now, the cause of action against the insurance company is not

based on quasi-delict but based on contract because he seeks
to recover liability from the insurance company based on the
third-party liability clause of the insurance contract with the
company.
A: NO. It should only be P300,000 as prayed for in the complaint.
So, there is no common cause of action among them.
Q: Suppose during the trial, only P200,000 was proved. What

should be the amount of the default judgment?
ISSUE #2: Is the insurance company an indispensable party?

Because if it is so and he is removed from the case, the case
cannot proceed without him.
A: Only P200,000 as proved because it did not exceed the amount

prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the
amount prayed for in the complaint although it may be less than it.
153

FUNDAMENTAL REASON ON THE RULE ON DEFAULT
the trial, the limitations in paragraph [d] does not apply.

Therefore in this case, a greater amount than that prayed for
in the complaint, or a different nature of relief may be
awarded so long as the same are proved.
What is the reason behind this? You have to know the philosophy
on default to understand the reason behind paragraph [d]. Default
means the defendant failed to file an answer despite the fact that
he was properly summoned.
It may be pointed out that there is a difference between a

judgment against a defendant based on evidence presented
ex-parte pursuant to a default order and one based on
evidence presented ex-parte and against a defendant who
had filed an answer but who failed to appear at the hearing. In
the former, Section 3 [d] of Rule 9 provides that the judgment
against the defendant should not exceed the amount or be
different in kind from that prayed for. In the latter, however,
the award may exceed the amount or be different in kind
from that prayed for.
Q: If a defendant failed to file an answer, what may be the reasons

behind that? Why did he not file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two
(2) possible reasons:
1.
Defendant deliberately did not answer because he

believed that he had no good defense, and that the claim
is fair. And if he will make an answer, still he will not win
and would just incur expenses;
2.
He had a meritorious defense and he wanted to answer

but for one reason or another beyond his control, he
failed to file his answer.
This is because when there is an ex parte presentation of evidence

due to failure to appear in trial, ones standing in court is not lost.
HE can still present evidence later to refute the plaintiffs evidence.
He simply waived the rights attached on particular hearing but not
to all subsequent trials. In judgment by default, he actually loses his
standing in court.
Q: In the second possibility the defendant had a defense and

wanted to file an answer but failed to file an answer, what is the
remedy of such defendant?
They added a new (third) limitation Unliquidated damages cannot

be awarded in default judgment. Obviously liquidated ones can be.
A: It is paragraph [b] file a motion to lift the order of default and

state the reasons beyond ones control fraud, mistake, accident,
or excusable negligence (FAME) and that there is a meritorious
defense.
Q: What is the difference between UNLIQUIDATED damages and

LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to
evidence before it can properly be awarded such as the
presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched reputation
in cases of moral damages.
Now suppose he did not answer because he thinks the claim is fair
and so he will just pay. Then, the contingency is paragraph [d]
rest assured that the judgment will not exceed the amount or be
different in kind from that prayed for. At least, you will not be
surprised.
LIQUIDATED DAMAGES are those which are already fixed and

proof or evidence to establish the same are not required. An
example is an obligation with a penal clause like an agreement to
construct a house and upon failure to finish the same within a
stipulated period, the contractor is liable for P10,000 for every day
of delay. The amount is already fixed based on the contract price
and the penalty provided and such other circumstances as
stipulated.
Q: If the defendant filed an answer but failed to appear during trial,

what will happen?
A: The case will proceed and there will be a presentation of
evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex
Parte presentation of evidence will be ordered.
So, in an action for unliquidated damages, let the defendant be

declared in default anyway the court can never award those
damages. Because if I will zanswer, damages can be awarded. In
other words, I will win the case simply because there is no way for
the court to award the damages. And most damages are usually
those unliquidated damages.
MANGELIN vs. CA 215 SCRA 230 [1992]

ISSUE: What is the difference between ex-parte presentation
of evidence by virtue of default judgment AND ex-parte
presentation of evidence by failure to appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER,

paragraph [d] applies the judgment cannot exceed the
amount or be different in kind from that prayed for in the
complaint.
(e) Where no defaults allowed. - If the

defending party in an action for annulment or
declaration of nullity of marriage or for legal
separation fails to answer, the court shall
order the prosecuting attorney to investigate
whether or not a collusion between the
BUT if theres an ex-parte reception of evidence against a

defendant who filed an answer but FAILED TO APPEAR during
154

parties exists, and if there is no collusion, to

intervene for the State in order to see to it
that the evidence submitted is not fabricated.
(6a, R18)
the
various
modes
of
discovery (Sec. 3[c] Rule 29; or
(b) If a party or officer or managing
agent of a party willfully fails
to appear before the officer
who is to take deposition or a
party fails to serve answers to
interrogatories. (Sec. 5 Rule
29)
This refers to marital relations referred to in the Family Code:

Annulment of marriage; Declaration of nullity of marriage; Legal
Separation. And the policy of the State is to preserve the marriage
and not encourage break-ups.
Now, in the absence of this provision, husband and wife quarrels
and then they decide to separate. Wife will file a case for legal
separation with the agreement that the husband will not answer.
Being in default, there will be a judgement in default and in a
months time marriage will be severed for the meantime. The
provision then prohibits default in marital relations cases to
preserve and uphold public policy.
Relate this provision of the rule to Articles 48 and 60 of the Family
Code:
Family Code, Art. 48. In all cases of
annulment or declaration of absolute nullity
of marriage, the court shall order the
prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to
take care that the evidence is not fabricated
or suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon
a stipulation of facts or confession of
judgment.
Family Code, Art. 60. No decree of legal
separation shall be based upon a stipulation
of facts or a confession of judgment.
In any case, the court shall order the
prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the
parties and to take care that the evidence is
not fabricated or suppressed.
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). By way of
exception, a judgment by default may be
rendered in the following cases despite an
answer having been filed:
(a) If a party refuses to obey an order
requiring him to comply with
155

Rule 10
EXAMPLE: The plaintiff files his complaint or the defendant files his
answer and then later on he realizes that his cause of action is
wrong or that his defense is wrong. He would like to change his
complaint or change his answer. All he has to do is amend his
complaint or answer. The court cannot stop him from changing
his complaint or changing his answer because the purpose of
litigation is: the real nature of controversy will be litigated in
court. You cannot normally stop the party from ventilating his real
cause of action or his real defense so that the rule is that
amendments should be liberally allowed in the furtherance of
justice and that the real merits of the case will come out in court.
That is what you have to remember about concept of amendments
and the policy of the rules on amendments.
AMENDED AND SUPPLEMENTAL PLEADINGS

Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings
may be amended by adding or striking out an
allegation or the name of any party, or by
correcting a mistake in the name of a party or
a mistaken or inadequate allegation or
description in any other respect, so that the
actual merits of the controversy may speedily
be determined, without regard to
technicalities, and in the most expeditious
and inexpensive manner. (1)
TYPES OF AMENDMENTS:
The following are the important points to remember here:
Pleadings may be amended by:

1)
2)
3)
4)
5)
6)
FIRST, there are two types of amendment of pleadings under the

rules:
adding an allegation of a party

adding the name or substituting a party
striking out an allegation of a party;
striking out the name of a party;
correcting a mistake in the name of a party; and
correcting a mistake or inadequate allegation or
description in any other respect.
1)
2)
An amendment as a matter of right; or

An amendment as a matter of judicial discretion
SECOND, an amendment could be
So you can amend by removing something, adding something, or

changing something by substituting another word. You can amend
by removing an entire paragraph, an entire sentence, a phrase, or a
word. As a matter of fact, before reaching Rule 10, there are
provisions where amendments have already been touched upon,
one of which is Rule 1, Section 5:
1)
2)
a formal amendment; or
a substantial amendment
These are the same classification under the Rules on Criminal

Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and
Amendment as a MATTER OF JUDICIAL DISCRETION
Sec. 5. Commencement of action.- A civil

action is commenced by the filing of the
original complaint in court. If an additional
defendant is impleaded in a later pleading,
the action is commenced with regard to him
on the date of the filing of such later
pleading, irrespective of whether the motion
for its admission, if necessary, is denied by
the court.
AMENDMENT AS A MATTER OF RIGHT simply means that the

party has the unconditional action or right to amend his pleading.
The court has no right to prevent him from amending. The
opposite party has no right to oppose the amendment. If the court
refuses to admit the amended pleading such refusal is correctible
by mandamus.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply
means that the court may or may not allow the amendment. So
the other party has the right to oppose. This is also known as
amendment by leave of court.
Q: What is the policy of the law on amendments?

A: Section 1 says that the purpose of amendment is that the actual
merits of the controversy may speedily be determined without
regard to technicalities, and in the most expeditious and
inexpensive manner. According to the SC, amendments to
pleadings are favored and should be liberally allowed in order
AMENDMENT AS A MATTER OF RIGHT
Sec. 2. Amendments as a matter of right. - A

party may amend his pleading once as a
matter of right at any time before a
responsive pleading is served or, in the case
of a reply, at any time within ten (10) days
after it is served. (2a)
(a)
to determine every case as far as possible on its actual

merits without regard to technicalities,
(b) to speed up the trial of cases, and
(c) to prevent unnecessary expenses. (Verzosa vs. Verzosa,
L-25603, Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31,
1960)
156

Amendment as a matter of right at any time before a responsive

pleading is served or in case of a Reply, within 10 days after it is
served.
summarily corrected by the court at any

stage of the action, at its initiative or on
motion, provided no prejudice is caused
thereby to the adverse party. (4a)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend

my complaint. When is the amendment a matter of right?
When the amendment is fairly formal, it can be done anytime. As a

matter of fact it can be summarily corrected by the court at any
stage of the action, upon motion or even without motion because
anyway that is a harmless correction.
A: At any time a responsive pleading is served to the complaint.

Meaning, at any time before the defendant has filed his answer,
the plaintiff may change his complaint at any time. He may change
it in any manner, substantially or formally.
NOTE: Change of amount of damages is only formal because there

is no change in the cause of action.
Q: How about the defendant? Suppose he wants to change his

answer, when is his right absolute or as a matter of fact right?
SUMMARY: Amendment as a matter of right:
A: At any time before a reply by the plaintiff is filed or before the

expiration of the period to file a reply because a reply may or may
be not be filed.
1)
2)
3)
4)
Rule applicable before the trial court not on appeal
Before an answer is filed (Complaint);

Before a reply is filed or before the period for filing a
reply expires (Answer);
Any time within 10 days after it is served (Reply); and
Formal amendment
A motion to dismiss is not a responsive pleading
Section 2 refers to an amendment made before the trial court,

not to amendments before the Court of Appeals. The CA is vested
with jurisdiction to admit or deny amended petitions filed before it
(Navarro vs. Vda. De Taroma, 478 SCRA 336).
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 plaintiffs right to amend his
complaint (Paeste vs. Jadrigue 94 Phil. 179; Republic vs. Ilao 4 SCRA
106; Remington Industrial Salesvs. CA 382 SCRA 499).
Q: How about if you want to amend your reply? You cannot say
before a responsive pleading is served because there is no more
responsive pleading to the reply.
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
vs. Corpuz 508 SCRA 45).
A: So under Section 2, the plaintiff can amend his reply at any time
within ten (10) days after it is served.
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 the theory is introduced (Bautista vs.
Maya-Maya Cottages, Inc. 476 SCRA 416).
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 vs. Luzon Stevedoring 84 Phil.
618; Ong Peng vs. Custodio 1 SCRA 780) because the trial courts
duty to admit an amended complaint made as a matter of right is
purely ministerial (Alpine Lending Investors vs. Corpuz 508 SCRA
45).
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.
(Bautista vs. Maya-Maya Cottages Inc. [supra]).
Q: Is there any other instance when amendment is a matter of

right even if there is already an answer or even in the middle of
the trial?
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 law. The rule is mandatory in character. A
partys failure to comply with the law will result in the decision
becoming final and executory and, as such, can no longer be
A: Yes, there is a second instance, when the amendment is

FORMAL IN NATURE as found in Section 4:
Sec. 4. Formal amendments. - A defect in the
designation of the parties and other clearly
clerical or typographical errors may be
157

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 GR
157232, December 10, 2007)
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 (PPA vs. William
GoThong & Aboitiz [WG&A], Inc. 542 SCRA 406 [2008])
Q: Assuming that the amendment is a matter of judicial
discretion, how should the court resolve it?
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
A: Based on established jurisprudence, the court should always

allow the amendment because of the liberal policy of the rules.
Amendments of pleadings should be liberally allowed in order that
the real merits of the case can be ventilated in court without
regard to technicalities. So the court will always lean on allowing a
pleading to be amended. That is the liberal policy.
Sec. 3. Amendments by leave of court. - Except

as provided in the next preceding section,
substantial amendments may be made only
upon leave of court. But such leave may be
refused if it appears to the court that the
motion was made with intent to delay.
Orders of the court upon the matters
provided in this section shall be made upon
motion filed in court, and after notice to the
adverse party, and an opportunity to be
heard. (3a)
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO

PLEADINGS
Q: What are the limitations to this liberal policy in allowing
amendments? Meaning, when can the court refuse to allow the
amendment and when can you validly oppose it?
Q: When is an amendment a matter of judicial discretion?
A: The following:
A: 1. If the amendment must be substantial; and
1.)
2.)
2. The adverse party has already filed and served a copy of his
responsive pleading.
3.)
The plaintiff, for example, cannot amend his complaint by changing

his cause of action or adding a new one without leave of court
(Calo and San Jose vs. Roldan 756 Phil 445; Buenaventura vs.
Buenaventura 94 Phil. 193)
when the amendment is to delay the action (Section 3);

when the amendment is for the purpose of making the
complaint confer jurisdiction upon the court (Rosario vs.
Carangdang, 96 Phil. 845);
when the amendment is for the purpose of curing a
premature or non-existing cause of action (Limpangco vs.
Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
4.) When the cause of action, defense or theory of the
case is changed.
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
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 vs. CA 303 SCRA 186).
The second sentence of Section 3 says that such leave may be

refused if it appears that the motion was made with intent to
delay. Meaning, the motion to amend is dilatory.
Example: a case is filed against the defendant based on a cause of
action then trialtrialthen the case is already about to end. Then
the plaintiff says he wants to amend his complaint and change his
cause of action. I dont think the court will allow it. Thats too
much.
Amendment discretionary
Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial court
is accorded sound discretion to grant or deny the admission of any
proposed substantial amendments to a pleading after a responsive
pleading has been filed. Generally, where the trial court has
jurisdiction over the case, proposed amendments are denied if such
would result in delay, or would result in a change of a cause of
action or defense or change the theory of the case, or are
inconsistent with the allegations in the original complaint. (Vivian
Locsin, et al., vs. Sandiganbayan, et al., GR No. 134458, August 9,
2007)
Or, the defendant will say that he would like to change his defense.
I dont think the court will agree with that situation because it
appears that the motion to amend is already dilatory. Why did it
take you one year to realize that your cause of action or your
defense is wrong? So that is a limitation where the court may
refuse to apply the principles on liberality. The liberal policy
becomes weaker or is working against you the longer you delay
your amendment because it might already be interpreted to be
dilatory.
Now if you will notice, there is another limitation found in the old
rules that is gone here, and that is: That the amendment will not
158

be allowed if it will SUBSTANTIALLY alter the cause of action or

defense (Torres vs. Tomacruz, 49 Phil. 913) The implication here is
that, since amendment is favored, even if you alter you cause of
action or defense, you should not prevent the other party provided
that it is not dilatory. And the definition of this limitation is a
confirmation of what the SC said in some cases like the case of
sustained the trial court as being consistent with the purpose and
spirit of the Rules (Gumabay vs. Baralin 77 SCRA 258).
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 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 SC
sustained the trial court (Soledad vs. Mamangun 8 SCRA 110).
MARINI-GONZALES vs. LOOD 148 SCRA 452

HELD: While the Rules of Court authorize the courts to
disallow amendment of pleadings when it appears that the
same is made to delay an action or that the cause of action or
defense is substantially altered thereby, the rule is not
absolute. It is discretionary
Courts are not precluded from allowing amendments of
pleadings even if the same will substantially change the cause
of action or defense provided that such amendments do not
result in a substantial injury to the adverse party. This is due
to the permissive character of said rule [which provides: may
refuse]. In fact, this Court has ruled that amendments to
pleadings are favored and should be liberally allowed in the
furtherance of justice.
Amendment to correct a jurisdiction defect after a responsive

pleading is served:
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 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.
That is why these are enough reason to delete that limitation. But if
you are going to change your cause of action or defense when the
trial is almost over, hindi na puwede because that will be dilatory.
But if you want to change it before the trial, that it still allowed,
even if it is substantial in nature. Thats why this limitation
disappeared. But despite the fact that there is only one limitation
now left, it is conceded that there are still limitations not found in
the law which have remained intact.
The situation is vastly different from an amendment 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.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING

THE COMPLAINT CONFER JURISDICTION UPON THE COURT
Amendment to correct a jurisdictional defect before a responsive

pleading is served:
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 issue of the propriety of the
admission of the amendment, the SC 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 courts jurisdiction (Campos Rueda Corp. vs. Bautista 6 SCRA
240; Rosario vs. Carandang 96 Phil. 845). Note that in Campos
Rueda, an answer has already been served and filed.
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 a matter of right.
In one case involving litigation over a parcel of land, the complaint
filed with the then CFI 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 cognizable by the CFI. The
trial court admitted the amended complaint, ordered the
defendants to answer it and denied the motion to dismiss. The SC
159

Similarly, in an action for damages filed before the then CFI 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 SC 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).
presented by the parties during the trial and was not objected to.
The provision also covers situations where, to conform to evidence
not objected to by the adverse party. Thus, a complaint which fails
to state a cause of action may be cured by evidence presented
during the trial.
For example, 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 and Foreign Loan Guarantee Corporation vs.
Philippine Infrastructures Inc. 419 SCRA 6).
In other words, if based on the original complaint the court has no

jurisdiction over the subject matter and the defendant has already
filed an answer, can I still amend the complaint so that the court
will have jurisdiction? No, that will not be allowed. So, jurisdiction
by the court cannot be conferred by amendment when the original
complaint shows that the court has no jurisdiction.
No amendment where no cause of action exists:

EXAMPLE: I will file a complaint for an unpaid loan and the amount
is exactly P200,000 only. Where should I file the complaint? MTC.
But by mistake I file it in the RTC and later I realized that the case
should have been filed in the MTC because the jurisdiction of the
RTC should be above P200,000. So I will amend my complaint and
change the complaint and say that my claim is P200,001.00. The
obvious purpose of the amendment is to make the case fall within
the jurisdiction of the RTC. According to the SC, it cannot be done.
Q: 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 vs. CA, 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.
The rule here is when in its face, the complaint shows that the
court has no jurisdiction over the subject matter, the court has no
authority to act in the case. And if you move to amend it and ask
the court to allow the amendment, you are assuming that the court
has the authority to act on the case. But the court cant allow it
because the court has no authority to act. So the court even is not
authorized to allow the amendment because it has no authority to
act in the first place. How can you allow something when you do
not have the authority to act?
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.
So according to the SC, when its on very face the complaint shows
that the court has no jurisdiction, the court has only one authority
and its only authority is to dismiss the case. So with that an
amendment cannot confer jurisdiction.
The court rules that such interpretation is erroneous. It further

said:
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 complaint which fails to state a cause
of action may be cured by evidence presented during the trial.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF

CURING A PREMATURE OR NON-EXISTING CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no
case. There is no delict or there is no wrong. Now how can you
create a delict or wrong by amending your complaint? In effect,
you are creating something out of nothing.
Amendment to cure a failure to state a cause of action:
If the 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 an amendment to the
complaint. Section 5 of Rule 10 likewise applies to situations
wherein evidence not within the issues raised in the pleadings is
However, the curing effect under Section 5 is applicable only if a

cause of action in fact exists at the time the complaint is filed, but
the complaint is defective for failure to allege the essential facts.
160

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 vs. 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.
deemed interrupted upon the filing of the amended

complaint; (Ruymann vs. Dir. of Lands, 34 Phil. 428)
b.)
But where the amendment has not altered or

changed the original cause of action, no different
cause of action is introduced in the amended
complaint, then the interruption of the prescriptive
period retroacts on the date of the filing of the
original complaint. (Pangasinan Trans. CO. vs. Phil.
Farming Co., 81 Phil. 273; Maniago vs. Mallari, 52
O.G. 180, October 31, 1956)
EXAMPLE: I will file today a case for damages arising from quasidelict. And then one or two months from now I will amend my
complaint from damages arising from culpa aquiliana to damages
arising from culpa contractual. Is that a different cause of action?
Yes, so the prescriptive period for culpa contractual is deemed filed
next month, not this month, because that is a different cause of
action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana,
and my claim is one million. Next month I amend my complaint for
damages from one million pesos to two million pesos. Did I change
my cause of action? No, it is still the same cause of actionculpa
aquiliana. Therefore, the prescriptive period is deemed interrupted
as of the date of the filing of the original complaint.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of

action from IMPERFECT cause of action?
1.)
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
In a NON-EXISTENT cause of action, there is yet no

delict or wrong committed by the defendant
(Limpangco vs. Mercado, 10 Phil. 508)
whereas
Now, the classifications of amendments under the rule on criminal

procedure are the same because there is such a thing as
amendments on the criminal complaints or information as a matter
of right on the part of the prosecution and amendments as a
matter of judicial discretion. And under the rules of criminal
procedure, an amendment can either be formal or substantially
received. There is some difference in the rules.
In an IMPERFECT cause of action, a delict or wrong

has already been committed and alleged in
the complaint, but he cause of action is
incomplete (Alto Surety vs. Aguilar, L-5625,
March 16, 1945); and
2.)
a NON-EXISTENT cause of action is not curable by

amendment (Limpangco vs. Mercado, 10 Phil.
508; Surigao Mine vs. Harris, 68 Phil. 113)
whereas
How do you differentiate the amendment of a pleading, under the

rules on civil procedure and the amendment of a criminal
complaint or information in criminal cases? Take note that there is
no Answer in criminal cases. The accused is not obliged to file
answer but the counterpart of answer in criminal cases is the plea,
where he pleads either guilty or not guilty.
an IMPERFECT cause of action is curable by

amendment (Alto Surety vs. Aguilar, L-5625,
March 16, 1945; Ramos vs. Gibbon, 67 Phil.
371).
Under the rules on criminal procedure, at anytime before the

arraignment or before he enters plea, the amendment of
information is a matter of right, either in form or in substance.
EXAMPLE: The prosecution files information against you for
homicide and then the prosecution wants to agree to murder. Can
it be done? YES, for as long as the accused has not yet entered his
plea.
BAR QUESTION: Suppose the filing of the complaint will lapse on

January 20 and I will file the complaint today so the running of
the period will be interrupted. Suppose I will amend my
complaint next month, on February. Question: Is prescription
properly interrupted? When an original complaint is amended
later, when is the prescriptive period for filing the action
interrupted? Upon the filing of the original complaint or upon the
filing of the amended complaint?
So it is almost the same as in civil cases. For as long as there is no

responsive pleading, the amendment is a matter of right, whether
in substance or in form.
A: It DEPENDS upon the nature of the amendment:

a.)
If the amendment introduces a new and different

cause of action, then the prescriptive period is
161

Q: Now in criminal cases, AFTER the accused had already entered

his plea to the original charged, is amendment still allowed? Can
the prosecution still amend?
the express or implied consent of the parties, they shall be treated

in all respects as if they had been raised in the pleadings.
EXAMPLE: In a collection case, the defendant in his answer raised a
defense that the money obtained from the defendants was not a
loan but a donation. During the trial, he attempted to prove that it
was a loan but it was already fully paid. So he is now proving the
defense of payment. He is practically changing his defense. If you
follow Rule 9, Section 1, that is not allowed.
A: YES. But what is allowed is only formal amendment and with

leave of court. Substantial amendment is 100% prohibited in
criminal cases. But in civil cases, formal amendment is still a matter
of right hence, does not require leave of court, while substantial
amendment is discretionary.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED;
EXCEPTION
But suppose the parties during the trial, the plaintiff agrees that
the defendant will prove that the obligation is paid, then it can be
done because issues now raised in the pleadings are tried with the
express consent of the parties. They shall be treated in all respects
as if they had been raised in the pleadings.
Sec. 5. Amendment to conform to or authorize

presentation of evidence - When issues not
raised by the pleadings are tried with the
express or implied consent of the parties,
they shall be treated in all respects as if they
had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be
made upon motion of any party at any time,
even after judgment; but failure to amend
does not affect the result of the trial of these
issues. If evidence is objected to at the trial
on the ground that it is not within the issues
made by the pleadings, the court may allow
the pleadings to be amended and shall do so
with liberality if the presentation of the
merits of the action and the ends of
substantial justice will be subserved thereby.
The court may grant a continuance to enable
the amendment to be made. (5a)
In the case of implied consent, the best example is when the

defendant attempts to prove payment and the plaintiff FAILED TO
OBJECT. So there is now an implied consent by the parties.
Therefore, the case can now be tried on the issue as if they had
been raised in the pleadings. That is what we call the principle of
estoppel. The parties are in estoppel because they expressly or
impliedly agreed to try an issue which is not raised in the pleadings.
The court will now render judgment and discuss the evidence and
discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you
read the complaint and the answer, there is no mention of
payment but in the decision resolved the case on that issue. The
pleadings are not in harmony with the decision.
Q: So how will you harmonize the two pleadings and the
decision?
A: The remedy according to Section 5 is to amend the pleadings.
We can amend the pleadings to make them conform to the
evidence. That is why the law says: such amendment of the
pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of
any party at any time, even after judgment.
When issues not raised in the pleadings are tried with the express
or implied consent of the parties1.
2.
3.
they shall be treated as if raised in the pleadings;

pleadings may be amended to conform to the evidence;
and
failure to amend does not affect the result of the trial of
these issues.
So even after the judgment, you can amend the pleading in order
to harmonize with the evidence. Normally, the evidence should
conform to the pleading under Rule 9. In this case, baliktad! it is
the pleading which is being amended to conform to the evidence.
It is the exact opposite.
Q: May issues not raised in the pleadings be tried in court during

the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed
to prove a defense that is not raised in the pleadings based on Rule
9, Section 1. The court has no jurisdiction over the issue. Thats
why there is no such thing as surprise defense because a defense
that is not raised is deemed waived.
Normally that is for the benefit of the appellate court in case the
decision will be the case will be appealed. The CA will read the
complaint and the answer, wala mang payment dito! But when
you read the decision, the main issue was payment not found in
the complaint and the answer. So there might be confusion. So
amendment is necessary at anytime, even after judgment.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be

relaxed?
Amendment to conform to evidence
A: YES. Section 5 is a relaxation of the rule specifically the first

sentence: when issues not raised in the pleadings are tried with
The curing effect under Sec. 5 R 10 is applicable only if a cause of

action in fact exists at the time the complaint is filed. Unless the
162

plaintiff has a valid and subsisting cause of action at the time his
action is commenced, the defect cannot be cured or remedied by
the acquisition or accrual of one while the action is pending, and a
supplemental complaint or an amendment setting up such after
accrued cause of action is not permissible. The action in the case at
bar 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 premature. (Swagman
Hotels and Travel, Inc. vs. CA and Neal Christian, GR No. 161135,
April 8, 2005)
Q: Is my ruling correct?
A: YES because of Rule 9, Section 1 objections and defenses not
raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading
so that I raised that defense. The plaintiff will object to the
amendment. The judge will ask the plaintiff, is the obligation
paid? NO. The defendant never paid it, answered the plaintiff.
So if the defense is false, why are you afraid? Anyway, he cannot
prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already
paid the obligation but that he never raised such matter in his
answer. The plaintiff now will be in bad faith. So I will allow the
amendment.
Q: But suppose the parties never bothered to amend the pleadings,

is there a valid judgment?
A: YES because the law says, but failure to amend does not affect
the result of the trial of these issues. So, there is a valid trial and
the court acquires jurisdiction over the issues because of their
implied or express consent. The best example is FAILURE TO
OBJECT.
So in other words, in any way my ruling is correct because I know

how to apply the rule. So the court will allow the amendment and
shall do so with liberality so LIBERALITY should be the rule on
amendment. Section 5 is a rule more on equity. While, Rule 9,
Section 1 is a rule of law. Section 5 is a relaxation of that law on
technicality.
if the evidence is objected to at the trial on the ground

that it was not within the issues made by the pleadings,
the court may allow the pleadings to be amended and
shall do so with liberality if the presentation of the merits
of the action and the ends of substantial justice will be
subserved thereby.
The last sentence, the court may grant a continuance to enable

the amendment to be made. Continuance means postponement.
It means, postponement of the case to allow the defendant to
amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
EXAMPLE: The defendant during the trial attempted to prove the

obligation that it is paid. The lawyer of the plaintiff is alert and
objected thereby, You cannot prove that defense because you
never raise a defense of payment in your answer. Is the objection
correct? YES because of Rule 9, Section 1. The court affirmed the
plaintiff that one cannot prove the defense of payment because
you never raised it in your answer. There is no express or implied
consent.
Sec. 6. Supplemental pleadings. - Upon

motion of a party the court may, upon
reasonable notice and upon such terms as are
just, permit him to serve a supplemental
pleading
setting
forth
transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. The adverse party may plead
thereto within ten (10) days from notice of
the order admitting the supplemental
pleading. (6a)
Q: But the defendant said, If that is so your honor, may we be

allowed to amend our answer so that we will now raise the
defense of payment and prove it in court? Can the court allow the
defendant to amend his answer in the middle of the trial just to
prove a defense that is not raised?
The second part of Rule 10 is on supplemental pleadings
A: The rule says YES, 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.
A supplemental pleading is one which avers facts occurring after

the filing of the original pleadings and which are material to the
matured claims and/or defenses therein alleged. (Herrera vol. 1 p.
603)
That is why you can say that the power of the court in enforcing the
Rules of Court is very wide. For example, I am the judge and the
defendant never raised the issue of payment in his answer and he
is now rising such defense. The plaintiffs lawyer will now object
and alleged that he cannot prove such defense for he never raised
it in his answer. The judge sustained the objection, You cannot
prove a defense that is never raised in your answer.
Cause of action in supplemental pleadings

The cause of action stated in the supplemental complaint must be
the same as that stated in the original complaint. Otherwise, the
court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)
163

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 vs. CA 324 SCRA 533).
FIRST DISTINCTION: As to the allegations

An AMENDED pleading contains transactions, occurrences or
events which already happened at the time the original
pleading was filed and could have been raised at the original
pleading, but which the pleader failed to raise in the original
pleading because, oversight or inadvertence or inexcusable
negligence. If he wants to raise it, he must amend the
pleading. Whereas,
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.
A
SUPPLEMENTAL
pleading
contains
transactions,
occurrences or events which were not in existence at the time
the original pleading was filed but which only happened after
the filing of the original pleading and therefore, could not
have been raised in the original pleading.
That is the distinction emphasized in the New Rule Rule 11,
Sections 9 and 10:
When the cause of action stated in the supplemental complaint is

different from the causes of action mentioned in the original
complaint the court should not admit the supplemental complaint;
the parties may file supplemental pleadings only to supply
deficiencies in aid of an original pleading, but not to introduce new
and independent causes of action (Young vs. Spouses Sy, 503 SCRA
151).
Rule 11, Section 9. Counterclaim or cross-claim

arising after answer. A counterclaim or crossclaim which either matured or was acquired by a
party after serving his pleading may, with the
permission of the court, be presented as a
counterclaim or cross-claim by supplemental
pleading before Judgment.
Answer to a supplemental pleading; not mandatory
Rule 11, Section 10. Omitted counterclaim or cross

claim. When a pleader fails to set up a
counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment
before judgment.
Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are
relevant, thus:
Sec. 6. Supplemental pleadings. xxxxx The adverse
party may plead thereto within ten (10) days from
notice of the order admitting the supplemental
pleading.
These provisions emphasize the difference between an amended

pleading and a supplemental pleading how do you raise a
counterclaim or cross-claim which was not raised earlier? Is it by
amending the pleading or by filing a supplemental pleading ? And
that applies also to an answer where the defense or the
transaction or the cause of action supervened later.
Sec. 7. Answer to supplemental complaint. xxxx 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 provisions, the filing of an
answer to the supplemental pleading is not mandatory because of
the use of the word may. This is 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
respondent in default simply because the latter opted not to file
their answer to the supplemental petition (Chan vs. Chan GR
150746, October 15, 2008).
SECOND DISTINCTION: As to effect

In an AMENDED pleading, the amended pleading
supersedes the original pleading. The original pleading is
deemed erased. The amended substitutes the original.
So from the viewpoint of the law, the original pleading
no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not
supersede the original pleading. In effect, there are now
two (2) pleadings which stand side by side in the case
the original and the supplemental pleadings.
Q: How do you distinguish an AMENDED pleading from a

SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the existence of
ORIGINAL PLEADING. The following are the distinctions:
EXAMPLE: Mortz borrowed from Nanding P200,000

payable in 2 yearly installments. Mortz failed to pay the
first installment. Nanding filed a case. While the case is
pending, the other installment became due. Nanding will
164

now file a supplemental pleading and as a result, there

will be two (2) complaints for P100,000 each.
happened after the filing of the first pleading sought to be

supplemented.
Rule in EVIDENCE: In an amended pleading, all your admissions and

evidence no longer exist because remember under the rules on
Evidence, any admission that you make in your pleading binds you
under the doctrine of judicial admission where the evidence need
not be given - as if it is taken judicial notice of. The rule is, if a
pleading is amended and the amended pleading does not contain
the admissions contained in the original pleading, the judicial
admission is now converted into an extra-judicial admission and
therefore the court will no longer take judicial notice of that.
ISSUE: Is there a proper supplemental complaint?

HELD: NO. It is improper. Although the plaintiff and the
defendant are the same, there are two separate loans
independent of each other as a matter of fact the stipulations
are not identical. It cannot be the subject matter of a
supplemental complaint. In this case, there are many types of
loans secured in different terms and conditions.
A supplemental complaint must be based on matters arising
subsequent to the original complaint RELATED to the claim
presented therein and FOUNDED on the same cause of
action. It cannot be used to try of another matter or a new
cause of action.
But if I want to bring it to the attention of the court an admission

which is not found there (in the amended pleading), I have to
formally offer in evidence the original pleading. Normally, you do
not offer in evidence a pleading because the court takes judicial
notice of everything stated in there. But if the original pleading is
now superseded, the original must be offered in evidence to prove
an admission found in the original but not anymore in the amended
one. That principle in now found in Section 8:
A good EXAMPLE for a supplemental complaint is when I borrow

money from you for P600,000 payable in three installments. First
installment is on February for P200,000; second installment is on
April; and the last installment is on June for the last P200,000.
There is no acceleration clause. When the first installment fell due,
I did not pay. So the plaintiff filed a case against me to collect the
first installment. In April, the case is still not yet decided. In fact
the second installment again fell due. Plaintiff moved to file for the
supplemental pleading. While the two cases are still pending, the
last installment fell due and again there is failure to pay, so there is
another supplemental complaint.
Section 8. Effect of amended pleadings. - An

amended pleading supersedes the pleading that it
amends. However, admissions in superseded
pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein
not incorporated in the amended pleading shall be
deemed waived.
Q: Is that proper?
That is related to the rule in evidence that what need not be

proved: judicial notice, judicial admissions.
A: YES because these are not two separate loans but one loan and
the installments are interrelated.
THIRD DISTINCTION:
The filing of an AMENDED pleading could be a matter of right
or of judicial discretion under Sections 2 and 3; whereas
SUPERCLEAN SERVICES INC. vs. CA 258 SCRA 165 [1996]
The filing of a SUPPLEMENTAL pleading is always a matter of

judicial discretion under Section 6. There is always leave of
court.
FACTS: Superclean Service Corp. is a company engaged in

janitorial services. A government corporation, the Home
Development and Mutual Fund (HDMF) sought a public
bidding on who will be the company who shall provide
janitorial services to the offices of the HDMF for the year
1990.
Now, let us cite cases which are relevant to our topic on

supplemental pleadings.
Superclean won as it was the lowest bidder. It was suppose to

start providing the service for the year 1990. However, the
HDMF refused to honor the award. So, on November 8, 1989,
Superclean filed in the RTC of Manila a complaint for
mandamus and certiorari against HDMF alleging that at public
bidding for janitorial services for the year 1990, it won as the
lowest bidder but HDMF refused without just cause, to award
the contract to them.
LEOBRERA vs. CA 170 SCRA 711

FACTS: Karen went to the bank and obtained a loan housing
loan. A promissory note was issued payable next year. After
few months, Karen went back to the bank and secured a
second loan agricultural loan with another promissory note.
When the first note became due, Karen failed to pay. So the
bank sued Karen on the first promissory note. When the case
was still going on, the second loan became due. So the bank
sought to file a supplemental complaint against Karen to
collect the second loan. The maturity of the second loan
The problem was that 1990 already ended and the case was
still on-going. So it was already rendered moot and academic.
What Superclean did was to file a supplemental complaint in
1991 alleging that because the contract of service was the
165

furnishing of janitorial services for the year 1990, the delay in

the decision of the case has rendered the case moot and
academic without Superclean obtaining complete relief to
redress the wrong committed against it by HDMF which relied
now consists of unrealized profits, exemplary damages and
attorneys fees.
for the court and the opposing party to immediately see and detect
the amendment. If no appropriated mark is provided the court and
the lawyer has to compare everything, paragraph by paragraph,
sentence by sentence, line by line. Now, if there are underlines, the
court will just concentrate on the underlined portion. This is for
convenience for the parties and the court.
So, money claim na lang dahil moot and academic na eh.

Instead of pursuing its prayer for mandamus, Superclean
sought the payment of damages to it.
An amendment which merely supplements and amplifies facts

originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the Statute of
Limitations which expired after service of the original complaint.
(Verzosa vs. CA, GR No. 119511-13, Nov. 24, 1998)
ISSUE: Is the filing of supplemental complaint proper in order

to seek a different relief in view of developments rendering
the original complaint impossible of attainment?
Section 8. Effect of amended pleadings. - An

amended pleading supersedes the pleading
that it amends. However, admissions in
superseded pleadings may be received in
evidence against the pleader; and claims and
defenses alleged therein not incorporated in
the amended pleading shall be deemed
waived.
HELD: The transaction, occurrence or event happening since

the filing of the pleading, which is sought to be supplemented,
must be pleaded in aid of a party's right of defense as the case
may be. [Thats the purpose of the supplemental pleading in
aid of the partys cause of action or defense] But in the case
at bar, the supervening event is not invoked for that purpose
but to justify the new relief sought.
(Section 8: See discussion on Section 6 on distinctions between an

amended and supplemental pleading; second distinction)
To begin with, what was alleged as a supervening event

causing damage to Superclean was the fact that the year for
which the contract should have been made had passed
without the resolution of the case. The supervening event was
cited not to reinforce or aid the original demand, which was
for the execution of a contract in petitioner's favor, but to say
that, precisely because of it, petitioner's demand could no
longer be enforced, thus justifying petitioner in changing the
relief sought to one for recovery of damages. This being the
case, petitioner's remedy was not to supplement, but rather
to amend its complaint. You are actually changing the relief
so that the correct remedy is not a supplemental complaint
but an amended complaint.
Effect of Amended Pleading

1.
2.
3.
An amended pleading supersedes the pleading that it

amends;
Admissions in the superseded pleading can still be
received in evidence against the pleader;
Claims or defenses alleged therein but not incorporated
or reiterated in the amended pleading are deemed
waived.
Note: Admission in a superseded pleading is an extrajudicial

admission and may be proved by the party relying thereon by
formal offer in evidence. (Regalado p. 193)
Be that as it may, the so-called Supplemental Complaint filed

by petitioner should simply be treated as embodying
amendments to the original complaint or petitioner may be
required to file an amended complaint. So, meaning, you call
it a supplemental complaint, the court will call it as an
amended complaint or the other alternative, require him to
file an amended complaint.
Some authors though are of the opinion that admissions in

superseded pleadings need not be offered in evidence pursuant to
Sec. 4 R 129.
The first sentence is one of the distinctions between an amended
pleading and a supplement pleading. From procedural viewpoint,
the original pleading is already non-existent. The court will no
longer consider anything stated there.
Sec. 7. Filing of amended pleadings. - When

any pleading is amended, a new copy of the
entire
pleading,
incorporating
the
amendments, which shall be indicated by
appropriate marks, shall be filed. (7a)
When a party files an amended pleading, the amendments should
be indicated by appropriated marks, normally, the amended
portion is underlined.
EXAMPLE: You say something favorable to me. However, in his

amended pleading, he removes such statement, so that the court
will not consider it anymore. Such statement is out of the picture.
Now, if you want to bring to the attention of the court the
statement found in the original pleading, you must offer the
original pleading in evidence to consider it all over again. This rule
will be considered in the study of EVIDENCE.
EXAMPLE: A party would to insert an entirely new paragraph. That

paragraph would be underlined. The purpose for such marking is
It has been held however, that the original complaint is deemed

superseded and abandoned by the amendatory complaint only if
166

the latter introduces a new or different cause of action (Verzosa vs.

CA 299 SCRA 100).
Effect of amendment on admissions made in the original pleading
Admissions made in the original pleadings cease to be judicial
admissions (Ching vs. CA 331 SCRA 16). They are to be considered
as extrajudicial admissions (Bastida vs. Menzi & Co., Inc., 58 Phil.
188; Torres vs. CA 131 SCRA 224). However, admissions in
superseded pleadings may be received in evidence against the
pleader (Sec. 8 Rule 10) and in order to be utilized as
extrajudicial admissions, they must, in order to have such effect, be
formally offered in evidence (Ching vs. CA, 331 SCRA 16).
When summons not required after complaint is amended
Although the original pleading is deemed superseded by the
pleading that amends it, it does not ipso facto follow that the
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 courts 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 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 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 vs. CA 310
SCRA 26).
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 inn which he was not yet a [arty (Arcenas vs. CA 299
SCRA 733).
167

Rule 11
excluded and of course the last day is included. And if the last day
is the next working day, it is done on the next business day. Here,
there is an automatic extension.
WHEN TO FILE RESPONSIVE PLEADINGS

What are discussed in this rule are periods. The question when a
defendant wants to file an answer is, How many days does he
have? There must be a deadline. Rule 11 applies to all persons
natural and juridical such as a corporation.
Rule 22, Sec. 2. Effect of interruption. Should

an act be done which effectively interrupts
the running of the period, the allowable
period after such interruption shall start to
run on the day after notice of the cessation of
the cause thereof.
SECTION 1. Answer to the complaint. The

defendant shall file his answer to the
complaint within fifteen (l5) days after
service of summons, unless a different period
is fixed by the court. (1a)
The day of the act that caused the

interruption shall be excluded in the
computation of the period. (n)
Section 1 is the GENERAL RULE the defendant has a period of 15

days after service of summons within which to file his answer. The
procedure is when a plaintiff files a complaint in court, the court
will issue summons (which is the counterpart of warrant of arrest
in criminal cases). The sheriff of the court will look for the
defendant and serve him a copy of the complaint. From that day
on, the defendant has 15 days to file his answer.
Alright, a good example of this is the period to file an answer which

is 15 days and then you filed a motion to dismiss under Rule 16
somewhere in between. Now, what is the principle to be
remembered here?
The filing of the motion to dismiss will now interrupt the running of
the 15-day period. And when your motion is denied, if you receive
the order of the denial now, you continue computing the balance
within the remaining period to file your answer.
The rules says, unless a different period is fixed by the court. That
would be the EXCEPTION to the 15-day period to file answer. Now,
when are these instances when the court may fix a different
period? They are those mentioned in Rule 14, Sections 14, 15, and
16 these are instances when service of summons by publication is
prescribed.
Now, some people cant understand this second sentence The

day of the act that caused the interruption shall be excluded in the
computation of the period. The meaning of this is exemplified in
the case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:
Lets give example to the general rule.
We will assume that on November 30 (end of the month), you were

served with summons by the court. So you have 15 days to file your
answer from November 30. Let us say, on December 10, you filed a
motion to dismiss under Rule 16. So, the remaining of the period to
file an answer is interrupted. And let us say on December 15 or 5
days thereafter, your motion was denied, you receive a copy of the
order of denial.
EXAMPLE: If the defendant is served with a copy of the complaint

and summons today (January 13,1998), the last day to file an
answer will be January 28, 1998. Just add 15 days to January 13.
In computing the period, you follow the rule known as exclude the
first, include the last day rule under Article 13 of the New Civil
Code. I think you know how to apply that. When you receive the
complaint today or when you are summoned today, you start
counting the period tomorrow. Such rule is also found in Section 1
of Rule 22 on Computation of Time:
My QUESTION is, how many days more do you have or left to file
your answer? Five days?
How many days did you consume?
Rule 22, Sec. 1. How to compute time. - In

computing any period of time prescribed or
allowed by these Rules, or by order of the
court, or by any applicable statute, the day of
the act or event from which the designated
period of time begins to run is to be excluded
and the date of performance included. If the
last day of the period, as thus computed, falls
on a Saturday, a Sunday, or a legal holiday in
the place where the court sits, the time shall
not run until the next working day. (n)
From November 30 to December 10 = 10 days, and from December

10 to December 15 = not counted. And you still have 5 days, so
December 20.
Now if you ask majority of lawyers here, they will give the same answer. BUT according to LABITAD, that computation is wrong. You
actually have six (6) days.
So your deadline to file you notice to appeal is December 21. Why?
Now, when did you file your motion? December 10. Therefore,
December 10 is not counted because it is already interrupted.
Under Section 1, Rule 22 the act itself from which the designated
period of time where the case will run is to be excluded. Meaning,
when you receive the summons, you count one but today is
So actually, you did not consume 10 days but only 9 days. That is
the explanation of the SC in the case of LABITAD the day you filed
168

your motion to dismiss is already excluded. So you only count

December 1 to 9. This is the illustration of the sentence the day
the act which caused the interruption is excluded in the
computation of t tie period.
A: Generally, it is the Secretary of the Department of Trade and

Industry. But for some types of business, the law may designate
any other official. Like the foreign corporation to be sued is a
foreign insurance company (e.g. Sun Life of Canada), under
Insurance Code, you serve it to the Insurance Commissioner. Or if it
is a foreign bank which has branch here, you serve the summons to
the Superintendent of the Bangko Sentral ng Pilipinas.
ILLUSTRATION:
November 30
December 10
December 15
December 21
Defendant
received
Summons
Defendant filed a
Motion to
Dismiss
Motion to
Dismiss is denied.
Deadline to file
the Answer
Summary
Answer to a Complaint
1.
Within 15 days after service of summons, unless a

different period is fixed by the Court;
2.
In case the defendant is a foreign private juridical entity:

a. If it has a resident agent - within 15 days after service
of summons to him;
Alright, lets go back to Rule 11:

Sec. 2. Answer of a defendant foreign private
juridical entity. Where the defendant is a
foreign private juridical entity and service of
summons is made on the government official
designated by law to receive the same, the
answer shall be filed within thirty (30) days
after receipt of summons by such entity. (2a)
The defendant here is a foreign private juridical entity, meaning, a
foreign corporation doing business in the Philippines. In the first
place, one cannot sue a foreign private corporation which is not
doing business in the Philippines because there is no way that the
court can acquire jurisdiction over the person of such corporation.
If the foreign private corporation is doing business in the
Philippines, then one can sue it here in the Philippines.
EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay Pacific,
etc.
Q: Now, what is the period to answer when the defendant is a
foreign private corporation doing business in the Philippines?
b.
if it has no resident agent, but it has an agent or

officer in the Philippines - within 15 days after
service of summons to said agent or officer;
c.
if it has no resident agent, nor agent nor officer - in

which case service of summons is to be made on the
proper government office (now the SEC) which will
then send a copy thereof by registered mail within
10 days to the home office of the foreign private
corporation - within 30 days after receipt of
summons by the home office of the foreign private
entity.
3.
In case of service of summons by publication - within the

time specified in the order granting leave to serve
summons by publication, which shall not be less than 60
days after notice (R 14, Sec. 15; and
4.
In case of a non-resident defendant on whom

extraterritorial service of summons is made, the period
to answer should be at least 60 days.
The court may extend the time to file the pleadings but may not
shorten them (Except in Quo Warranto proceedings)
A: It DEPENDS:
a)
When the foreign corporation has a designated resident

agent, the summons shall be served to the resident
agent, and he has 15 days to answer, just like any
defendant in Section 1.
Sec.3. Answer to amended complaint. Where

the plaintiff files an amended complaint as a
matter of right, the defendant shall answer
the same within fifteen (l5) days after being
served with a copy thereof.
b)
On the other hand, if the foreign corporation does not

have any designated resident agent in the Philippines,
then under the Corporation Code, the summons shall be
served to the government official designated by law to
receive the same, who is duty bound to transmit it to the
head office of the corporation abroad. And the
corporation now has 30 days from receipt of summons
to file its answer.
Where its filing is not a matter of right, the

defendant shall answer the amended
complaint within ten (10) days from notice of
the order admitting the same. An answer
earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
This Rule shall apply to the answer to an
amended counterclaim, amended crossclaim, amended third (fourth, etc.) party
So it is either 15 or 30 days.
Q: Now, who is this proper government official designated by law
to receive summons?
169

complaint, and
intervention. (3a)
amended
complaint-in-
Alright, the third paragraph of Section 3 is new. It includes

amended counterclaims, amended cross-claims.
Now, what is the period to file an answer to an amended

complaint?
Sec. 4. Answer to counterclaim or cross-claim.

A counterclaim or cross-claim must be
answered within ten (10) days from service.
(4)
Under Section 3, there are two (2) periods first paragraph, 15

days; second paragraph, 10 days. Now what is the difference?
1)
2)
Now, if you answer a counterclaim or cross-claim, you have Section

4. The period to file an answer to a counterclaim or cross-claim is
only ten (10) days from the time it is served.
If the filing of an amended complaint is a matter of right

- within 15 days from service of the amended complaint.
If the filing of an amended complaint is not a matter of
right - within 10 days counted from notice of the court
order admitting the same.
Q: What happens if the plaintiff does not answer the counterclaim

of the defendant?
The Rule shall apply to the answer to an amended counterclaim,

amended cross-claim; amended third (fourth, fifth, etc. ) party
complaint and amended complaint-in-intervention.
A: He can be declared in default on the counterclaim. He has still

standing to prove his cause of action in the main case but he loses
his standing to defend himself in the counterclaim.
If no new Answer is filed, answer to original pleading shall be

deemed as answer to the amended pleading.
Q: Are there instances where an answer to a counterclaim is

optional? Meaning, the plaintiff does not answer and he cannot be
declared in default.
Suppose the complaint is amended as a matter of right because

defendant has not yet filed an answer, meaning, the complaint is
served on you and even before you answer it was amended and
another complaint is served, then you have 15 days to file your
answer counted from the day of service of the amended complaint.
So forget the original period and you have 15 days all over again.
A: YES, that is when the counterclaim is so intertwined with the

main action they are so intertwined that if the plaintiff would
answer the counterclaim, it would only be a repetition of what he
said in his complaint. In this case, even if the plaintiff will not
answer, he cannot be declared in default.
But suppose the defendant has already answered the original

complaint and then the plaintiff decides to amend his complaint
which under the previous rule, is a matter of judicial discretion.
Now, suppose the court issued an order admitting the amended
complaint and the defendant is furnished a copy of the order
admitting the amended complaint, if he wants to answer the
amended complaint, he has 10 days to do it and not 15 days. The
10-day period will be counted from service of the order admitting
the amended complaint, not from the service of the amended
complaint because the same may not be admitted. You wait for the
order of the court admitting the amended complaint.
EXAMPLE: The plaintiff filed a case against the defendant for

damages arising from a vehicular collision. According to the
plaintiff, because of the negligence of the defendant, the plaintiffs
vehicle was damaged amounting to that much. So the cause is
quasi-delict. Now in his answer, defendant says no and he denied
the liability and he files a counterclaim saying, As a matter of fact,
it is the plaintiff who is negligent. And since my vehicle was
damaged, I am now claiming damages against him.
So practically, the issue on negligence is being thrown back. Now,
the plaintiff did not answer the counterclaim, can he be declared in
default?
So, there are two (2) periods to file an answer to an amended

complaint.
NO, because if you require the plaintiff to file an answer, what will
he say? The same, NO, you were the one at fault!He will just be
repeating what he already alleged.
Q: Suppose I will not file an answer to the amended complaint. I

filed an answer to the original complaint but I did not file an
answer to the amended complaint, can I be declared in default?
Sec. 5. Answer to third (fourth, etc.)- party

complaint. The time to answer a third (fourth,
etc.)- party complaint shall be governed by
the same rule as the answer to the
complaint. (5a)
A: NO, because Section 3 provides that the answer earlier filed may
serve as an answer to the amended complaint if no answer is filed.
Like when the amendment is only formal, why will I answer? In
other words, my defenses to the original complaint are still
applicable.
Sec. 6. Reply. A reply may be filed within ten

(l0) days from service of the pleading
responded to. (6)
So the principle is: if no answer is filed to the amended complaint,

the answer to the original complaint automatically serves as the
answer to the amended complaint and therefore the defendant
cannot be declared in default.
170

The third-party defendant is served with summons just like the

original defendant. Hence, he also has 15, 30 or 60 days from
service of summons, as the case may be, to file his answer.
If the counterclaim or cross-claim was acquired by a party after

serving his pleading, he may raise it by way of supplemental
pleading. But if a pleader fails to set up a counterclaim or a crossclaim which is already matured when he filed his pleading due to
oversight inadvertence or excusable neglect, then he may raise it
by way of amended pleading before judgment. Leave of court is
necessary.
If you want to file a reply, you have ten (10) days to file. But as a
general rule, the filing of a reply is optional.
Sec. 7. Answer to supplemental complaint. A
supplemental complaint may be answered
within ten (10) days from notice of the order
admitting the same, unless a different period
is fixed by the court. The answer to the
complaint shall serve as the answer to the
supplemental complaint if no new or
supplemental answer is filed. (n)
Sec. 11. Extension of time to plead. Upon

motion and on such terms as may be just, the
court may extend the time to plead provided
in these Rules.
The court may also, upon like terms, allow an
answer or other pleading to be filed after the
time fixed by these Rules. (7)
It follows the same rule as in Section 3, second paragraph. A

supplemental complaint may be answered in ten (10) days. The
computation is again from notice of the order admitting the same
unless a different period is fixed by the court.
Requisites:
1.
2.
3.
Suppose I will not answer the supplemental complaint? The same

principle the answer to the original complaint shall serve as the
answer to the supplemental complaint. So it follows the same
principle as the amended complaint in the second paragraph of
Section 3.
There must be a motion;

With service of such motion to other party; and
On such terms as may be just.
The period to file is 15 or 10 days, but the general rule is 15 days.

Q: Now, is the 15-day period extendible?
A: YES, upon motion and on such terms as may be just, the court
may extend the time to plead.
Sec. 8. Existing counterclaim or cross-claim. A

compulsory counterclaim or a cross-claim
that a defending party has at the time he files
his answer shall be contained therein. (8a,
R6)
Normally, the lawyer will file a motion for extension of time to

answer on the 15th, the 14th, or the 13th day. Thats very
common. The common reason of the lawyers for the extension is
pressure of work. Others are because of the traditional maana
habit. We usually act during the deadline.
One of the requisites to make a counterclaim compulsory is that

the defending party has the counterclaim at the time he files his
answer. This is related with Section 7, Rule 6.
Take note that when you file your motion for extension, do it
within the original 15-day period. Do not file your motion on the
16th day because there is nothing to extend. So the extension is
usually filed within the 15-day period.
Sec. 9. Counterclaim or cross-claim arising

after answer. A counterclaim or a cross-claim
which either matured or was acquired by a
party after serving his pleading may, with the
permission of the court, be presented as a
counterclaim
or
a
cross-claim
by
supplemental pleading before judgment. (9,
R6)
Q: Now what happens if the lawyer fails to file such a motion? So

the 15 days already expired, then on the 18th, he will now file an
answer. Now what should the lawyer do?
A: The lawyer can use the second paragraph, The court may also,
upon like terms, allow an answer or other pleading to be filed after
the time fixed by these Rules. The correct motion is MOTION TO
ADMIT LATE ANSWER.
Sec. 10. Omitted counterclaim or cross-claim.

When a pleader fails to set up a counterclaim
or a cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court,
set up the counterclaim or cross-claim by
amendment before judgment. (3a, R9)
EXAMPLE: The deadline is 3 days ago. I failed to file my answer but

now it is ready. So, motion to admit belated answer.
Normally, the courts here are liberal in allowing extensions. The
general rule is that the court frowns on default. As such as possible
both sides must be heard. So in the spirit of liberality, courts are
usually liberal in allowing these extensions in time to file answers.
We already discussed this before. As a matter of fact, Sections 9

and 10 illustrates the distinction between an amended pleading to
a supplemental pleading.
171

SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS
PLEADING PERIOD
1.) Answer
15 days
2.) Answer of a private foreign corporation

a. with designated Philippine representative
b. no designated Philippine 30 days representative
15 days
3.) Answer to an amended complaint

a. if as a matter of right
b. if as a matter of judicial discretion
4.) Answer to counterclaim or cross-claim
15 days
10 days
10 days
5.) Answer to third (fourth, etc.) party complaint
15 days
6.) Reply
10 days
7.) Answer to supplemental complaint
10 days
172

Rule 12
movant may be deprived of the opportunity to submit an

intelligent responsive pleading.
BILL OF PARTICULARS
When not proper
Section 1. When applied for; purpose. Before
responding to a pleading, a party may move
for a definite statement or for a bill of
particulars of any matter which is not averred
with sufficient definiteness or particularity to
enable him properly to prepare his
responsive pleading. If the pleading is a reply,
the motion must be filed within ten (10) days
from service thereof. Such motion shall point
out the defects complained of, the
paragraphs wherein they are contained, and
the details desired. (1a)
1)
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
partys claims or defenses. Matters of evidentiary facts
are to be omitted.
2)
It would likewise not be proper for a motion for a bill of

particulars to call for the production of the particulars
constituting malice, intent, knowledge, or condition of
the mind which, under Sec. 5 Rule 8, may be averred
generally. To require a pleader to do so would be to
require the statement of evidentiary facts in a pleading.
Q: Define Bill of Particulars.

A: A bill of particulars is a more definite statement of any matter
which is not averred with sufficient definiteness or particularity in
a pleading so as to enable the opposing party to prepare his
responsive pleading. (Section 1)
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 Sec. 5 Rule 8,
such matters must be alleged with particularity.
When filed
3)
The motion shall be filed before responding to a pleading. Hence, it

must be filed within the period granted by the Rules (R11) for the
filing of a responsive pleading.
A motion for bill of particulars to require a pleader to set

forth matters showing the jurisdiction of the court to
render its judgment is not proper. The provisions of Sec.
6 Rule 8 are clear: In pleading a judgment it is sufficient
to aver the same generally.
The motion shall point out:

1.
2.
3.
In Republic vs. Sandiganbayan 540 SCRA 431, 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 latters income, is a proper
subject of a motion for bill of particulars. Plaintiff is bound to clarify
the 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.
The defects complained of;

The paragraphs wherein they are contained; and
The details desired.
The motion must comply with the requirements for motions under
Secs 4, 5, and 6 of R 15. Otherwise the motion will not suspend the
period to answer (Filipino Fabricator vs. Magsino, GR No. 47574,
Jan. 29, 1988).
Purpose: To aid in the preparation of a responsive pleading
An action cannot be dismissed on the ground that the complaint is

vague or indefinite. The remedy of the defendant is to move for a
bill of particulars or avail of the proper mode of discovery. (Galeon
vs. Galeon GR No. L-30380, Feb. 28, 1973)
The purpose of the motion is to seek an order from which court

directing the pleader to submit a bill of particulars which avers
matters with sufficient definiteness or particularity to enable the
movant to prepare his responsive pleading (Sec. 1), 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 even of a
pre-trial under Rule 18.
Necessary that complaint states a cause of action

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 a bill of particulars.
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 a cause of action
or a defense. Without the clarifications sought by the motion, the
173

To which pleadings directed
Its primary objective is to apprise the adverse party of what

the plaintiff wants to preclude the latter from springing a
surprise attack later.
It must be made clear that a motion for a 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
ambiguous allegations.
According to the SC, the primary purpose of the bill of particulars is

to apprise the adverse party of what a plaintiff wants. To preclude
the latter from springing a surprise attack later. Why? Because the
plaintiff may deliberately make his allegations vague, to confuse
you to mislead you because you might adopt a different
interpretation. If the interpretation turns out to be different, your
defenses might be wrong. So, he deliberately makes his complaint
ambiguous. Now, the other party should thwart that by asking for
a bill of particulars to compel the plaintiff to make the allegations
of his cause of action clearer. So, that is what the bill of particulars
is all about.
EXAMPLE: The plaintiff filed a complaint against you and you are
now furnished with a copy by the lawyer of the plaintiff. So, you
have to file your answer. You have to understand what the cause
of action is all about. So you read the complaint you notice that
the allegations are vague, ambiguous, and uncertain. So, you
cannot understand the allegations. So, you have a hard time
preparing your answer. Now, you do not want to answer
something that you cannot understand.
Q: So what is your remedy?
Now, we will go to a specific situation and lets find out whether

the defendant could file for a bill of particulars.
A: The remedy is, instead of answering, you file a motion for a bill
of particulars and according to Section 1, your motion will point out
the defects complained of, the paragraphs where they are
contained and the details desired. Because according to you, the
allegations are not averred with sufficient definiteness or
particularity to enable you properly to prepare your responsive
pleading that is what it is all about.
PROBLEM: Now, suppose the pleader says in his complaint that he

has been in the possession of the litigated property continuously
for forty (40) years. The defendant flied a motion for a bill of
particulars, The allegations is very broad, very general, very vague.
Please tell by way of particulars what are the improvements you
introduced for the past 40 years. I would like to ask for these
details to clarify your allegations that you have been in continuous
possession of the land for 40 years.
So the defendant resorts to the Bill of Particulars if the allegations

of ultimate facts in the complaint are vague and ambiguous that
the defendant will have difficulty in preparing his answer. So, he
can not understand and will ask for more details to clear the
ambiguities. He will file a motion for Bill of Particulars, citing the
defects and ask for the details, because how can he prepare an
answer if he does not understand the complaint?
Q: Is that a proper motion for a Bill of Particulars?

A: NO, because it is asking for evidentiary matters. In the first
place, the plaintiff has no obligation to state the evidentiary
matters in his complaint. It should only state ultimate facts. So, it is
not allowed in the pleading. You cannot ask for that by way of
particulars.
BAR QUESTION: Suppose a complaint is ambiguous, uncertain,

indefinite or vague, can the defendant file a motion to dismiss?
So, what is sought to be remedied are vague and ambiguous

statements of ultimate facts. But you cannot use it to fish for
evidentiary matters. Evidentiary facts cannot be the subject of a
motion for a bill of particulars.
A: NO! A complaint cannot be dismissed simply because it is vague,

ambiguous. (Pagan vs. Evening News, L-13308, Oct. 29, 1960) The
correct remedy is for the defendant to file a motion for bill of
particulars, which will ask for more details on these vague portions
of the complaint. (Amoro vs. Sumaguit, L-14986, July 31, 1962)
Q: But is it not fair that before trial I should know your evidentiary
matters?
According to the SC in the case of

A: I believe it is fair for the defendant to compel the plaintiff to
reveal the details of his ultimate facts but not under Rule 12. You
better avail of the modes of discovery under Rule 23, depositions,
request for admission, etc. But you cannot convert Rule 12 into a
modes of discovery. Each rule has its own functions.
TAN vs. SANDIGANBAYAN 180 SCRA 34 [1989]
HELD: The proper office of a bill of particulars is to inform the

opposite party and the court of the precise nature and
character of the cause of action the pleader has attempted to
set forth, and thereby to guide his adversary in his
preparations for trial and reasonably protect him against
surprise at the trial. It complements the rule on pleadings in
general, that is, that the complaint should consist of a concise
statement of the ultimate facts.
So, lets give a good example of an instance, where the defendant

can rightfully ask for more specifics or particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of
contract on the ground that the defendant employed FRAUD in
getting the consent of the plaintiff. The plaintiff said, He got my
consent to the contract by fraud. The defendant filed a motion for
a bill of particulars: That the defendant employed fraud in getting
174

plaintiffs consent is vague, So, Im asking the plaintiff should give

more specifics. How did I fool you? In what way did I employ fraud?
In what way was the fraud exercised?
prepare for trial. The motion shall specify the

alleged defects of the complaint or information
and the details desired. (10a)
Q: Now, is the motion for a bill of particulars meritorious?
The concept is the same. If the allegations in the information are

also vague and ambiguous, I cannot understand it, so I cannot
intelligently enter my plea. The accused, before arraignment, can
move for a bill of particulars to enable him to prepare properly for
the trial. Then he must specify the defects.
A: YES, because allegations of fraud must be stated with

particularity. So, you go back in Rule 8, Section 5:
Rule 8, Sec. 5 Fraud, mistake, condition of the
mind.In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must
be stated with particularity. x x x
CINCO vs. SANDIGANBAYAN (criminal case) 202 SCRA 726

[1991]
FACTS: A motion for bill of particulars was filed by the lawyer
of the respondent in the fiscals office when the case was
under preliminary investigation. (In preliminary investigation,
you are given the affidavit of the complainant and his
witnesses. And then you are given 10 days to submit your
counter-affidavits.) Here, the affidavit is vague according to
the accused, so he is filing a bill of particulars. He wanted to
compel the complainant to make his affidavit clearer.
We already studied that provision. Therefore, if the allegation of

the plaintiff is simply that the defendant employed fraud, that
allegation is not sufficient because under Rule 8, it must be stated
with particularity. Therefore, if it is not stated with particularity,
the remedy of the defendant is to file a motion for a bill of
particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang answer
malabo. It is the other way around. It is the defendants answer
which is vague or uncertain. Can the plaintiff file a motion for bill of
particulars to compel he defendant to clarify or to particularize his
vague answer?
ISSUE: Is Section 9 applicable when the case is still in the

fiscals office for preliminary investigation?
HELD: NO. It is only applicable when the case is already in
court for trial or arraignment.
A: YES, because the plaintiff can say, I cannot file my reply. I mean,
I want to file a reply but I cant file a reply unless I understand what
is your defense. So it works both ways.
But suppose during the preliminary investigation, I cannot

understand what the complainant is saying in his affidavit?
The SC said, that is simple! If you cannot understand what the
complainant is saying in his affidavit, chances are, the fiscal
also will not understand it. And consequently, he will dismiss
the case. Eh di mas maganda! Wag ka na lang mag-reklamo!
[tanga!]
Q: Suppose, it is the reply of the plaintiff to the answer which is

vague or ambiguous. Can the defendant file a motion for bill of
particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within 10
days. So even if the reply is vague, it can still be the subject of the
bill of particulars within 10 days because there is no more
responsive pleadings there.
Sec. 2. Action by the court. Upon the filing of

the motion, the clerk of court must
immediately bring it to the attention of the
court which may either deny or grant it
outright, or allow the parties the opportunity
to be heard. (n)
So, every pleading which is vague the other party can always
compel you to make it clearer.
Q: Is this remedy available in criminal cases?
So pag-file mo ng motion for bill of particulars, the clerk has the

obligation to bring it immediately to the attention of the court and
the court can deny or grant the motion immediately. But of course,
it is up to the court to call for a hearing or not.
A: YES. If it is the information which is vague, you cannot

understand the allegations in the information, you cannot plead,
Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko
maintindihan eh the accused can file a motion for bill of
particulars to require the prosecution to clarify vague portions of a
complaint or information.
Q: Now, what do you think is the reason behind that? Why do you
think is this provision here, which is not found in the old rules?
A: Many lawyers have abused Rule 12.
There is an identical provision in Rule 116, Section 9 of the Rules on

Criminal Procedure.
In what way? A complaint is filed but even if the allegations are

clear he will file a motion for bill of particulars claiming that he
cannot understand. Then, he will set the motion for hearing 2
weeks from now. Then the motion is denied because it has no
merit, then, and only then will he file an answer. In other words,
RULE 116, SEC. 9. Bill of particulars. The accused

may, before arraignment, move for a bill of
particulars to enable him properly to plead and
175

the defendant has succeeded in delaying the period for filing an

answer by pretending that he cannot understand.
a)
b)
So in order to prevent that kind of dilatory tactic, when the motion

is filed, the court is now authorized to immediately act on the
motion without delaying the filing of the answer. That is the reason
why this provision was inserted because the filing of the motion for
bill of particulars can cause delay.
2)
If the plaintiff fails to obey, his complaint may be

dismissed with prejudice unless otherwise ordered by
the court (R 12, Sec. 4; R 17, Sec. 3);
3)
If defendant fails to obey, his answer will be stricken off

and his counterclaim dismissed, and he will be declared
in default upon motion of the plaintiff (R 12, Sec. 4; R 17,
Sec. 4; R 9, Sec. 3)
Action of the court

Upon receipt of the motion which the clerk of court must
immediately bring to the attention of the court, the latter has three
possible options, namely,
a)
b)
c)
may order the striking out of the pleading or the

portion thereof to which the order is directed; or
make such order as it may deem just.
Q: Alright, suppose the motion is granted, the court ordered the

plaintiff to submit a bill of particulars. The plaintiff refused to
comply with the order. What is now the remedy?
to deny the motion outright,

to grant the motion outright, or
to hold a hearing on the motion.
A: The court may order the striking out of the pleading or portions
thereof which is the object of the bill of particulars. Like, when you
do not want to clarify your complaint, the judge will now issue an
order to strike out the entire complaint. It is as if the complaint was
never filed. Practically, your complaint was dismissed. In effect your
complaint was dismissed because if the complaint was ordered
stricken out, then it is equivalent to dismissal of the case itself.
Sec. 3. Compliance with order. If the motion is

granted, either in whole or in part, the
compliance therewith must be effected
within ten (l0) days from notice of the order,
The bill of particulars or a more definite
statement ordered by the court may be filed
either in a separate or in an amended
pleading, serving a copy thereof on the
adverse party. (n)
Sec. 5. Stay of period to file responsive

pleading. After service of the bill of
particulars or of a more definite pleading, or
after notice of denial of his motion, the
moving party may file his responsive pleading
within the period to which he was entitled at
the time of filing his motion, which shall not
be less than five (5) days in any event. (1[b]a)
Q: Suppose the court grants the motion and the defendant or the
plaintiff will be required to submit the bill of particulars. How will
you comply with the order to file a bill of particulars?
Effects of Motion
A: There are two (2) ways:
1.)
2.)
Period to comply with the order granting the motion - 10 days from
notice of order unless a different period is fixed by the court.
The Bill of Particulars may be filed either in a separate or in an
amended pleading serving a copy thereof to the adverse party.
If the motion is granted, in whole or in part, the movant

can wait until the bill of particulars is served on him by
the opposing party and then he will have the balance of
the reglementary period within which to file his
responsive pleading; and
2)
If his motion is denied, he will still have such balance of

the reglementary period to file his responsive pleading,
counted from service of the order denying his motion.
Note: In either case he shall have no less than 5 days to file his
responsive pleading.
Sec. 4. Effect of non-compliance. If the order is

not obeyed, or in case of insufficient
compliance therewith, the court may order
the striking out of the pleading or the
portions thereof to which the order was
directed or make such other order as it
deems just. (1[c]a)
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I

filed a motion for a bill of particulars. On the 8th day, the running
of the period automatically stops and then after several days, you
receive the order. For example, denying your motion, you still have
7 days to go because the period during which your motion was
pending will not be counted as the 15 day period was interrupted.
Effect of Non-Compliance
1)
1)
Just submit the details of the vague paragraphs; or
Amend the whole pleading and clarify the vague
paragraphs
Q: Suppose, you file your motion for a bill of particulars on the 14th
day and your motion is denied. You received the order today. How
many days more to file an answer?
If the order is not obeyed or in case of insufficient

compliance, therewith, the court:
176

A: Five (5) days. You are guaranteed a minimum of 5 days.

Therefore, if a defendant filed the motion for bill of particulars
within 15 days, he cannot be declared in default. The plaintiff
cannot declare the defendant in default for failure to file an answer
because 15 days had already lapsed. It will be interrupted by the
filing of the motion and the period commences to run again from
the time he received the bill of particulars or the order denying his
motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of
particulars becomes part of the pleading for
which it is intended. (1[a]a)
When you file a bill of particulars clarifying the paragraphs in the
complaint which are vague, the bill of particulars becomes part of
the complaint with its supplements.
177

Rule 13
Service upon the parties counsel 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 vs. Elizalde GR 141810 &
141812, February 2, 2007; Hernandez vs. Clapis, 87 Phil. 437; Javier
Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
FILING AND SERVICE OF PLEADINGS,

JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern

the filing of all pleadings and other papers, as
well as the service thereof, except those for
which a different mode of service is
prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So,
this rule governs pleadings except those for which a different
mode of service is prescribed. An example of the exception is the
service of complaint which is governed by Rule 14. So Rule 13
applies to all pleadings except complaint.
There was even a case when the client volunteered to get the copy
of the decision. But he party failed to give it to his lawyer. Is the
lawyer bound, or is the party also bound? NO, because the rule is
service to lawyer binds the client and not the other way around.
What is the difference between filing and service of pleadings?

Section 2:
So, to avoid all these problems, there must be a uniform rule

UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF IS
ORDERED BY THE COURT.
Sec. 2. Filing and service, defined. Filing is the

act of presenting the pleading or other paper
to the clerk of court.
Example is in the case of
Service is the act of providing a party with a

copy of the pleading or paper concerned. If
any party has appeared by counsel, service
upon him shall be made upon his counsel or
one of them, unless service upon the party
himself is ordered by the court. Where one
counsel appears for several parties, he shall
only be entitled to one copy of any paper
served upon him by the opposite side. (2a)
RETONI, JR. vs. CA 218 SCRA 468 [1993]

HELD: Usually, service is ordered upon the party himself,
instead of upon his attorney, [1] when it is doubtful who the
attorney for such party is, or [2] when he cannot be located or
[3] when the party is directed to do something personally, as
when he is ordered to show cause.
There are rare circumstances however where service to the lawyer
doe,s not bind the client. These are cases of negligence; where the
lawyer is in bad faith for gross negligence; where he deliberately
prejudiced his client. So it is unfair that the party may be bound by
the service to the lawyer because of those circumstances. One such
instance happened in the case of
When you say FILING, you present the pleading or other papers to
the office of the clerk of court. When you say SERVICE, you furnish a
copy of the pleading or paper concerned to a party, or if he is
represented by a lawyer, you must furnish a copy of the pleading to
the lawyer.
BAYOG vs. NATINO 258 SCRA 378 [1996]
The GENERAL RULE, when a party is represented by a lawyer, the

service should be to the lawyer and not to the party. Service to a
party is not valid. What is valid is service to the counsel. Service to
the lawyer binds the party. But service to the party does not bind
the lawyer and the party, unless the court orders direct service to
the party.
HELD: Notice to the lawyer who appears to have been

unconscionably irresponsible cannot be considered as notice
to his client. The application to the given case of the doctrine
that notice to counsel is notice to parties should be looked
into and adopted, according to the surrounding
circumstances; otherwise, in the courts desire to make a
short cut of the proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the detriment of justice.
It would then be easy for one lawyer to sell ones rights down
the river, by just alleging that he just forgot every process of
the court affecting his clients, because he was so busy.
If a party has not appeared by counsel, then common reason

suggests that service must be made upon him.
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 vs CA GR 170247, September 17,
2008).
Q: Now, if there are 5 defendants in the same case and there is

only one (1) lawyer for all, is the lawyer entitled to 5 copies also?
178

1)
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last
sentence, Where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the
opposite side. But if the 5 defendants are represented by different
lawyers, that is another story. Every lawyer has to be furnished a
copy.
2)
Personal by presenting the original copy of the pleading,

notice, appearance, motion, order or judgment,
personally to the clerk of court; or
by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You go

to the court and the court will mark it RECEIVED on January 15,
1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.
Q: Suppose you are represented by three or more lawyers should

every lawyer be served a copy?
Section 3 says, by presenting the original copies thereof, plainly

indicated as such personally to the clerk of court There was a
lawyer before who referred to me. He said he filed a complaint. There are many copies of it. The court will usually receive 2 or 3
copies 1 for itself, 1 for the defendant to be served with
summons.
A: NO, service on one is sufficient. Section 2 says, service shall

be made upon his counsel or one of them Service to one is
service to all. You can do it if you want to but service on one will
suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Second Mode of Filing: FILING BY REGISTERED MAIL
Now, how do you file pleadings? Section 3:

Sec. 3. Manner of filing. The filing of
pleadings, appearances, motions, notices,
orders, judgments and all other papers shall
be made by presenting the original copies
thereof, plainly indicated as such, personally
to the clerk of court or by sending them by
registered mail. In the first case, the clerk of
court shall endorse on the pleading the date
and hour of filing. In the second case, the
date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as
shown by the post office stamp on the
envelope or the registry receipt, shall be
considered as the date of their filing,
payment, or deposit in court. The envelope
shall be attached to the record of the case.
(1a)
The other mode is by registered mail. It is not ordinary mail. It is

filing through the registry service and made by depositing the
pleading in the post office and not through any other means of
transmission.
If a private carrier is availed of by the party, the date of actual
receipt by the court of such pleading and not the date of delivery to
the private carrier, is deemed to be the date of the filing of that
pleading (Benguet Electric Cooperative Inc. vs. NLRC, GR No. 89070
May 18, 1992)
Q: What is the importance of registered mail on filing of pleadings
and motions in court?
A: The importance is the rule that in registered mails, the date of
filing is the date of mailing. If you send the pleading through the
Post Office by registered mail, the date of filing is not the date on
which the letter reached the court but on the day that you mailed
it. So the date on the envelope is officially the date of filing.
Now, judgments. It must be filed. Why will the court file its own
judgment before itself? Actually, the judge has to file his decision
before the court. Read Rule 36, Section 1:
Q: Now, suppose I will file my pleading not by registered mail but

through messengerial service like LBC or JRS Express delivery, or by
ordinary mail? What is the rule if instead of the registered service
of the Post Office, you availed the private messengerial service or
by ordinary mail?
Rule 36, Section 1. Rendition of judgments and

final orders. A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by
the judge, stating clearly and distinctly the
facts and the law on which it is based, signed
by him, and filed with the clerk of the court.
(1a)
A: The mailing in such cases is considered as personal filing and the

pleading is not deemed filed until it is received by the court itself.
When it is by registered mail, the date of mailing as shown by the
Post Office stamp is considered as the date of filing. The envelope
is attached. The post office is automatically a representative of the
court for the purpose of filing. In other words, the law treats the
messengerial company only as your process helper. That is why in
the 1994 case of
So, the judge has to file his own decision to make it official.
Under Section 3, there are two (2) modes of filing either
179

INDUSTRIAL TIMBER CORP. vs. NLRC 233 SCRA 597 [1994]
c.
with instructions to the postmaster to return the mail to

the sender after 10 days if undelivered.
It must be stressed that the affidavit is very important.
HELD: Where a pleading is filed by ordinary mail or by private

messengerial service, it is deemed filed on the day it is
actually received by the court, not on the day it was mailed or
delivered to the messengerial service.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Sec. 4. Papers required to be filed and served.
Every judgment, resolution, order, pleading
subsequent to the complaint, written motion,
notice, appearance, demand, offer of
judgment or similar papers shall be filed with
the court, and served upon the parties
affected. (2a)
What about filing by FAX machine? In the case of

GARVIDA vs. SALES, JR. - April 18, 1997
HELD: Filing a pleading by facsimile transmission is NOT
sanctioned by the Rules of Court. A facsimile is not a genuine
and authentic pleading. It is, at best, an exact copy preserving
all the marks of an original. Without the original, there is no
way of determining on its face whether the facsimile pleading
is genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham pleading.
Q: Now, how do you prove that really the pleading was filed?
Under the law, before you file, there must be service to the
opposing partys counsel. And all documents, as a rule, shall be
filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint. Why subsequent?
Meaning, answer, counterclaim, cross-claim.
A: Section 12. This is a new rule on how to prove that a pleading is

filed
Q: Do you mean to tell me the complaint does not have to be

served to the defendant by the plaintiff?
Sec. 12. Proof of filing. The filing of a pleading

or paper shall be proved by its existence in
the record of the case. If it is not in the
record, but is claimed to have been filed
personally, the filing shall be proved by the
written or stamped acknowledgment of its
filing by the clerk of court on a copy of the
same; if filed by registered mail, by the
registry receipt and by the affidavit of the
person who did the mailing, containing a full
statement of the date and place of depositing
the mail in the post office in a sealed
envelope addressed to the court, with
postage fully prepaid, and with instructions
to the postmaster to return the mail to the
sender after ten (10) days if not delivered. (n)
A: Of course not! It is the sheriff who will serve it to the defendant.

So, the plaintiff does not really have to go to the defendant to
serve the complaint. The complaint is brought to the court because
the summons will be issued.
But if you are the defendants lawyer, you go directly to the
plaintiffs lawyer to serve the answer because an answer is a
pleading subsequent to the complaint. Moreover, the manner of
serving complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people
do not understand this Every judgment, resolution, order shall
be filed with the court and served to the parties... Well of course,
with respect to pleadings, motions, etc., you file and serve because
there must be proof of service to the adverse party.
Sec. 5. Modes of service. Service of pleadings,
motions, notices, orders, judgments and
other papers shall be made either personally
or by mail. (3a)
Q: Suppose I filed it in court PERSONALLY, but it is not there,

therefore, there is no showing that I filed it in court personally. So
how do I prove it?
Q: How do you SERVE a pleading to the opposite party?
A: Just show your copy which is duly stamped and received by the
court. Definitely, the fault is not yours but with the clerk of court.
A: Either:
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of

it, it had been lost between the post office and the court?
1)
2)
3)
A: Prove it by presenting the registry receipt and the affidavit of

the server,
a.
b.
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 paid and
personally (Sec. 6)or

by mail (Sec. 7); or
Substituted service under Section 8 in case of failure of
the personal service or by registered mail
PERSONAL SERVICE OF PLEADINGS

Sec. 6. Personal service. Service of the papers
may be made by delivering personally a copy
180

to the party or his counsel, or by leaving it in

his office with his clerk or with a person
having charge thereof. If no person is found
in his office, or his office is not known, or he
has no office, then by leaving the copy,
between the hours of eight in the morning
and six in the evening, at the party's or
counsel's residence, if known, with a person
of sufficient age and discretion then residing
therein. (4a)
(b) 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,
(c)
then by leaving a copy of the papers at the partys or

counsels 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)
Now, let us go to some cases on personal service. The case of

PLDT vs. NLRC 128 SCRA 402 [1984]
Personal service under Section 6 is the preferred mode of service

(Sec. 11; Uy vs. Medina 342 SCRA 393).
FACTS: The office of the lawyer is on the 9th floor of a building

in Makati. So, siguro, sira iyong elevator, gikapoy iyong
process server, what he did was, he left the copy of the
judgment to the receiving station at the ground floor.
If another mode is used, the service must be accompanied by a

written explanation why the service or filing was not done
personally. Exempt from his explanation are 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.
ISSUE: Was there a valid service?

HELD: NO. The address of the lawyer is at the 9th floor. So,
you serve it on the 9th floor and not at the ground floor with
somebody who is not even connected with the law office.
In Marinduque Mining and Industrial Corporation, GR 161219,

October 6, 2008, 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 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 why it resorted to
service and filing by registered mail due to lack of manpower to
effect personal service.
Notices to counsel should properly be sent to the address of

record in the absence of due notice to the court of change of
address. The service of decision at the ground floor of a
partys building and not at the address of record of the partys
counsel on record at the 9th floor of the building cannot be
considered a valid service.
Service upon a lawyer must be effected at the exact given
address of the lawyer and not in the vicinity or at a general
receiving section for an entire multi-storied building with
many offices.
The Court held:
But the case of PLDT should not be confused with what happened
in the case of
Under Sec. 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.
PCI BANK vs. ORTIZ 150 SCRA 680 [1987]
FACTS: This time, the office of the lawyer is located on the 5th
floor. And again, the habit of the process server is that instead
of going to the 5th floor, he would just approach the receiving
station on the ground floor. Now, of course the receiving
clerk, everytime the lawyer passes by, gave it to the lawyer.
And the lawyer here did not question the practice.
In this case, NAPOCOR complied with the Rules. NAPOCORs 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. vs. Ricafort, 355 Phil. 404;
Public Estates Authority vs. Caoibes, 371 Phil. 688).
Now, when a decision against PCI Bank was served, the lawyer
claimed they are not bound because there was no proper
service.
How are pleadings served personally?
ISSUE: Was there proper service?
Personal service is made by:
HELD: While is true that the service was improper, but the
trouble is, it was going on for some time and you are not
(a)
delivering a copy of the papers served personally to the

party or his counsel, or
181

complaining. So, the ground floor becomes your adopted

address.
office, if known, otherwise at his residence, if

known, with postage fully pre-paid, and with
instructions to the postmaster to return the
mail to the sender after ten (l0) days if
undelivered. If no registry service is available
in the locality of either the sender or the
addressee, service may be done by ordinary
mail. (5a; as amended by En Banc Resolution,
Feb. 17, 1998)
They cannot now disown this adopted address to relieve

them from the effects of their negligence, complacency or
inattention. Service, therefore, of the notice of judgment at
the ground floor of the building, should be deemed as
effective service.
So, the judgment became final. There was no appeal. Those are
examples of personal service.
Now, SERVICE BY MAIL. You can also serve your pleadings by mail.
You will notice this time although the law prefers service by
registered mail, however, the last sentence of Section 7 says, If no
registry service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail.
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.
Take note, comparing Section 7 with Section 3, service by ordinary

mail may be allowed for purposes of service (Section 7), but for
purposes of filing (Section 3), the law does not recognize the
ordinary mail. If you do it, it will be treated as personal filing. In
registered mail, the date of receipt is considered the date of filing
not the date of mailing.
Respondent COA contends that the service of the COA resolution to

petitioners resident corporate auditor is tantamount 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 SC agreed with the contention of the 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. (DBP v.COA GR 166933 August
10, 2006).
Q: Now, when is service by mail deemed complete?

A: Section 10:
Sec. 10. Completeness of service. xxxxxx
Service by ordinary mail is complete upon the
expiration of ten (10) days after mailing,
unless the court otherwise provides.
Service by registered mail is complete upon
actual receipt by the addressee, or after five
(5) days from the date he received the first
notice of the postmaster,xxx
Q: So, when is personal service complete?

A: It is completed upon actual delivery.
a)
b)
By handling a copy to defendant; or

tendering him a copy if he refuses.
Note: whichever date is earlier. (8a)

So that is for the people who refuse to claim their mail even if they
are already notified. He knows it is an order he expects to be
adverse so he will try to defeat the service by not claiming it. NO,
you are at a disadvantage because after the expiration of so many
days, service is deemed completed. That is what you call
CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the
process of the law by simply not claiming his mail. You can be
bound by a decision which you never read. That is constructive
service.
Sec. 10. Completeness of service. Personal

service is complete upon actual delivery.
Service by ordinary mail is complete upon the
expiration of ten (10) days after mailing,
unless the court otherwise provides. Service
by registered mail is complete upon actual@
receipt by the addressee, or after five (5)
days from the date he received the first
notice of the postmaster, whichever date is
earlier. (8a)
SUBSTITUTED SERVICE OF PLEADINGS

Sec. 8. Substituted service. If service of
pleadings, motions, notices, resolutions,
orders and other papers cannot be made
under the two preceding sections, the office
and place of residence of the party or his
counsel being unknown, service may be
made by delivering the copy to the clerk of
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by registered

mail shall be made by depositing the copy in
the office, in a sealed envelope, plainly
addressed to the party or his counsel at his
182

court, with proof of failure of both personal

service and service by mail. The service is
complete at the time of such delivery. (6a)
Q: If it is by REGISTERED MAIL, how do you prove in court that you

served a copy?
A: If service is made by registered mail, proof shall consist of
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 is unknown (Sec. 8).
a)
b)
The registry return card shall be filed immediately upon its receipt
by the sender. Or, in lieu thereof, of the unclaimed letter together
with the certified or sworn copy of the notice given by the
postmaster that is a constructive service.
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).
How to prove service
Now in practice among lawyers when we serve by registered mail,

we only attach the original in the registry receipt and there is a
quotation there in the original pleading, Copy sent by registered
mail, this 17th day of January, 1998 to Atty. Juan dela Cruz, counsel
for the plaintiff per registry receipt no. 123 hereto attached, and
nobody complains.
Sec. 13. Proof of service. Proof of personal

service shall consist of a written admission of
the party served, or the official return of the
server, or the affidavit of the party serving,
containing a full statement of the date, place
and manner of service. If the service is by
ordinary mail, proof thereof shall consist of
an affidavit of the person mailing of facts
showing compliance with section 7 of this
Rule. If service is made by registered mail,
proof shall be made by such affidavit and the
registry receipt issued by the mailing office.
The registry return card shall be filed
immediately upon its receipt by the sender,
or in lieu thereof the unclaimed letter
together with the certified or sworn copy of
the notice given by the postmaster to the
addressee. (10a)
But in reality, the law does not allow that. There must be an
affidavit of the person who mailed it. The surrender of a registry
receipt alone is not sufficient because if you send the registry
receipt, it is not reflected to whom that letter is addressed so how
will the court know that the registry receipt really corresponded to
the pleading that you mailed? It might be another letter like a love
letter for your girlfriend or a letter to your creditor. The registry
receipt will not indicate kung ano ang na-mailed to his address. But
we just allow it because it is too tedious everytime you file,
affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you
mail a petition at may nakalagay na Copy sent by registered mail
without the affidavit, outright dismissal yan for lack of proof of
service. The SC and the CA are very strict about this requirement.
Q: How do you prove that you furnished the opposing lawyer a

copy by PERSONAL SERVICE?
SERVICE OF DECISIONS, ORDERS, ETC.
A: It is
a)
b)
c)
the affidavit of the mailer and

the registry receipt issued by the mailing office.
Sec. 9. Service of judgments, final orders or

resolutions. Judgments, final orders or
resolutions shall be served either personally
or by registered mail. When a party
summoned by publication has failed to
appear in the action, judgments, final orders
or resolutions against him shall be served
upon him also by publication at the expense
of the prevailing party. (7a)
through the written admission of the party served as

admitted that he had been furnished with a copy.
The other alternative is that you file the affidavit of your
employee, or messenger, that he served the copy in the
office of so and so. (containing full statement of facts).
Or, the official return of the server for judgments,
orders, etc., from the court.
The procedure is that there is a pleading and in the last portion

there is that part which states:
Copy received
By
January 16, 1998
(Signed) Atty. X
There are three (3) modes again of serving court orders or

judgments to parties:
Counsel of Plaintiff
1)
2)
3)
Q: If it is by ORDINARY MAIL, how do you prove in court that you

served a copy?
personally;
registered mail; or
service by publication, if a party is summoned by
publication and has failed to appear in the action.
Note: No substituted service
A: If it is ordinary mail, proof thereof shall consist of an affidavit of

the person mailing of facts showing compliance with Section 7.
183

Court orders or judgments orders have to be served also, either

personally or by registered mail. Thats why if you go to the court,
there are employees there who are called process servers.
Everyday, they go around from law office to law office to serve
court orders, notices and judgments. And that is personal service.
But if the lawyer is a Manila lawyer, or is out of town, chances are
the clerk of court will apply registered mail.
practicable, the service and filing of pleadings and other papers

shall be done personally EXCEPT WITH RESPECT TO PAPERS
EMANATING FROM THE COURT.
So the court is not obliged to give any explanation, only the parties
and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORT 293 SCRA 661
[August 5, 1998]
Under Section 9, there is a third mode of service of court orders

and judgments and that is service by publication. That is if the
parties were summoned by publication under Rule 14 and they did
not appear. The judgment is also served to them by publication at
the expense of the prevailing party.
FACTS: Solar Team filed before the RTC a complaint against

Felix Co. Summons and copies of the complaint were
forthwith served on Co. Co then filed his answer. A copy
thereof was furnished counsel for Solar Team by registered
mail; however, the pleading did not contain any written
explanation as to why service was not made personally upon
Solar Team, as required by Section 11 of Rule 13.
Sec. 11. Priorities in modes of service and

filing. Whenever practicable, the service and
filing of pleadings and other papers shall be
done personally. Except with respect to
papers emanating from the court, a resort to
other modes must be accompanied by a
written explanation why the service or filing
was not done personally. A violation of this
Rule may be cause to consider the paper as
not filed. (n)
Solar Team filed a motion to expunge the answer and to

declare Co in default, alleging therein that Co did not observe
the mandate of Section 11. RTC issued an order stating that
under Section 11 of Rule 13, it is within the discretion of the
RTC whether to consider the pleading as filed or not, and
denying, for lack of merit, Solar Teams motion to expunge.
HELD: Pursuant to Section 11 of Rule 13, service and filing of
pleadings and other papers MUST, whenever practicable, be
done personally; and if made through other modes, the party
concerned must provide a written explanation as to why the
service or filing was not done personally. Note that Section 11
refers to BOTH service of pleadings and other papers on the
adverse party or his counsel as provided for in Sections 6, 7
and 8; and to the filing of pleadings and other papers in
court.
That is a radical provision. In other words, there are two (2) ways of
service and filing: personal or by mail. And the law says, personal
service is preferred to mail. Meaning, personal service is prioritized.
Q: Suppose you served the opposing counsel by mail.
A: The law requires that you must give an explanation why you
resorted to mail and not to personal service.
Q: Suppose I will file it without any explanation.
Personal service will do away with the practice of some

lawyers who, wanting to appear clever, resort to the following
less than ethical practices: serving or filing pleadings by mail
to catch opposing counsel off-guard, thus leaving the latter
with little or no time to prepare, for instance, responsive
pleadings or an opposition; or, upon receiving notice from the
post office that the registered parcel containing the pleading
of or other paper from the adverse party may be claimed,
unduly procrastinating before claiming the parcel, or, worse,
not claiming it at all, thereby causing undue delay in the
disposition of such pleading or other papers.
A: The law says, A violation of this rule may be cause to consider

the paper as not filed. And that is a very radical rule..
EXAMPLE: the opposing counsel is in Manila, and the case is in
Davao. He will mail to you the pleading or motion and then, include
the following: Explanation: I have to resort to registered mail
because it is expensive for me to resort to personal service. It is
expensive if I will send my messenger to Davao just to serve
whereas if I send by registered mail, it will only cost me P5.00.
They have to state that.
Now, I think the purpose of this new provision has been provoked
by some malpractices of the lawyers. There were some instances
before which have been confirmed especially in Metro Manila. The
opposing counsel is holding office just across the street and he will
send a motion to be received today. Instead of serving you, he will
mail it. They will deliberately do it because it could not reach you
on time. I think if you do that, I will not consider your motion.
If only to underscore the mandatory nature of this

innovation to our set of adjective rules requiring personal
service whenever practicable, Section 11 then gives the court
the discretion to consider a pleading or paper as not filed if
the other modes of service or filing were resorted to and no
written explanation was made as to why personal service was
not done in the first place. The exercise of discretion must,
necessarily, consider the practicability of personal service, for
Section 11 itself begins with the clause whenever
practicable.
Take note that courts are not covered by Section 11. It only applies
to lawyers and parties. The court does not have to explain why it
resorted to registered mail because Section 11 says, Whenever
184

WHEREFORE, the instant petition is DISMISSED considering

that while the justification for the denial of the motion to
expunge the answer (with counterclaims) may not necessarily
be correct, yet, for the reasons above stated, the violation of
Section 11 of Rule 13 may be condoned.
We thus take this opportunity to clarify that under Section

11: Personal service and filing is the GENERAL RULE, and
resort to other modes of service and filing, the EXCEPTION.
Henceforth, whenever personal service or filing is practicable,
in light of the circumstances of time, place and person,
personal service or filing is mandatory. Only when personal
service or filing is not practicable may resort to other modes
be had, which must then be accompanied by a written
explanation as to why personal service or filing was not
practicable to begin with.
Sec. 13. Proof of service. Proof of personal

service shall consist of a written admission of
the party served, or the official return of the
server, or the affidavit of the party serving,
containing a full statement of the date, place
and manner of service. If the service is by
ordinary mail, proof thereof shall consist of
an affidavit of the person mailing of facts
showing compliance with section 7 of this
Rule. If service is made by registered mail,
proof shall be made by such affidavit and the
registry receipt issued by the mailing office.
The registry return card shall be filed
immediately upon its receipt by the sender,
or in lieu thereof the unclaimed letter
together with the certified or sworn copy of
the notice given by the postmaster to the
addressee. (10a)
Of course, proximity would seem to make personal service

most practicable, but exceptions may nonetheless apply such
as when: the adverse party or opposing counsel to be served
with a pleading seldom reports to office and no employee is
regularly present to receive pleadings, or service is done on
the last day of the reglementary period and the office of the
adverse party or opposing counsel to be served is closed, for
whatever reason.
However in view of the proximity between the offices of
opposing counsel and the absence of any attendant
explanation as to why personal service of the answer was not
effected, indubitably, Cos counsel violated Section 11 and the
motion to expunge was prima facie meritorious. However, the
grant or denial of said motion nevertheless remained within
the sound exercise of the RTC's discretion.
This has been discussed already.

Lets go to this topic of CONSTRUCTIVE SERVICE that if the
registered mail was not received and therefore you want to avail of
the rules on constructive service it is deemed served upon the
expiration of so many days. What you will file in court is the
unclaimed letter together with a certified or sworn copy of the
notice given by the postmaster to the addressee.
To Our mind, if motions to expunge or strike out pleadings

for violation of Section 11 were to be indiscriminately
resolved under Section 6 of Rule 1, then Section 11 would
become meaningless and its sound purpose negated.
Nevertheless, We sustain the challenged ruling of the RTC, but
for reasons other than those provided for in the challenged
order.
Let us see what happened in the case of

JOHNSON AND JOHNSON PHILS. vs. CA 201 SCRA 768
[1991]
The 1997 Rules of Civil Procedure took effect only on 1 Jul

1997, while the answer was filed only on 8 Aug 1997, or on
the 39th day following the effectivity of the 1997 Rules.
Hence, Cos counsel may not have been fully aware of the
requirements and ramifications of Section 11. It has been
several months since the 1997 Rules of Civil Procedure took
effect. In the interim, this Court has generally accommodated
parties and counsel who failed to comply with the
requirement of a written explanation whenever personal
service or filing was not practicable, guided, in the exercise of
our discretion, by the primary objective of Section 11, the
importance of the subject matter of the case, the issues
involved and the prima facie merit of the challenged
pleading.
FACTS: The CA served Johnson and Johnson Philippines a

decision in an envelope by registered mail. After a while, the
same envelope was returned to the CA. On the face of the
envelope, it as written, Return to Sender, Unclaimed. On
the back of the envelope, there is an annotation Return to
CA.
With that, the CA applied the rule on constructive service
considered the decision as already served. Johnson and
Johnson Philippines questioned it. It never received any notice
from the post office. But according to the CA, it is very
obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive
service?
However, as we have in the past, for the guidance of the

Bench and Bar, strictest compliance with Section 11 of Rule 13
is mandated one month from promulgation of this Decision.
HELD: There is NO constructive service because there is no

certification by the postmaster that is claimed. This is what
185

the law requires not just a one sentence statement. One

cannot even ascertain who wrote the statement. Certification
should include the details of delivery and not just state that
notice was issued.
(2) Constructive service - the completeness of which is

determined upon the expiration of 5 days from the
date of first notice of the postmaster without the
addressee having claimed the registered mail.
A certification from the postmaster would be the best

evidence to prove that the notice has been validly sent. The
mailman may also testify that the notice was actually
delivered. The postmaster should certify not only that the
notice was issued or sent but also as to how, when and to
whom the delivery thereof was made.
For completeness of constructive service, there must be

conclusive proof that Santoss former counsel or somebody
acting on his behalf was duly notified or had actually received
the notice, referring to the postmaster's certification to that
effect.
Here, Santos failed to present such proof before CA but only
did so in the present proceedings. Clearly then, proof should
always be available to the post office not only of whether or
not the notices of registered mail have been reported
delivered by the letter carrier but also of how or to whom and
when such delivery has been made.
There is nothing in the records of the present case showing

how, when and to whom the delivery of the registry notices of
the subject registered mail of petitioner was made and
whether said notices were received by the petitioner. The
envelope containing the unclaimed mail merely bore the
notation RETURN TO SENDER: UNCLAIMED on the face
thereof and Return to: Court of Appeals at the back. The
respondent court should not have relied on these notations to
support the presumption of constructive service.
Consequently, it cannot be too much to expect that when

the post office makes a certification regarding delivery of
registered mail, such certification should include the data not
only as to whether or not the corresponding notices were
issued or sent but also as to how, when and to whom the
delivery thereof was made. Accordingly, the certification in
the case at bar that the first and second notices addressed to
Atty. Magno had been "issued" can hardly suffice the
requirements of equity and justice. It was incumbent upon the
post office to further certify that said notices were reportedly
received.
The case of JOHNSON was reiterated in

SANTOS vs. CA 293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar

Yapchiongco before the CFI. CFI dismissed the complaint for
lack of merit. CA reversed and declared Santos liable for
damages.
This last section, Section 14, has something to do with real actions,
land titles notice of lis pendens.
On 15 June 1995, the decision of the CA was sent by

registered mail to Santos counsel, Atty. Magno. On the same
day, the corresponding notice of registered mail was sent to
him. The mail remained unclaimed and consequently returned
to the sender. After 3 notices, the decision was returned to
the sender for the same reason.
Sec. 14. Notice of lis pendens. In an action

affecting the title or the right of possession of
real property, the plaintiff and the defendant,
when affirmative relief is claimed in his
answer, may record in the office of the
registry of deeds of the province in which the
property is situated a notice of the pendency
of the action. Said notice shall contain the
names of the parties and the object of the
action or defense, and a description of the
property in that province affected thereby.
Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of
the property affected thereby, be deemed to
have constructive notice of the pendency of
the action, and only of its pendency against
the parties designated by their real names
On 27 September 1995, a notice of change of name and

address of law firm was sent by Atty. Magno to CA. On 28
March 1996, the same decision of CA was sent anew by
registered mail to Atty. Magno at his present address which
he finally received on 3 April 1996. On 17 April 1996, Magno
withdrew his appearance as counsel for Santos.
On 18 April 1996, Santos new counsel, Atty. Lemuel Santos,
entered his appearance and moved for reconsideration of
CA's decision of 6 June 1995. Yapchiongco opposed the
motion on the ground that the period for its filing had already
expired.
The notice of lis pendens hereinabove

mentioned may be cancelled only upon order
of the court, after proper showing that the
notice is for the purpose of molesting the
adverse party, or that it is not necessary to
HELD: The rule on service by registered mail contemplates 2

situations:
(1) Actual service - the completeness of which is
determined upon receipt by the addressee of the
registered mail;
186

protect the rights of the party who caused it

to be recorded. (24a, R14)
Now, as GENERAL RULE, the one who registers a notice of lis

pendens is the plaintiff.
This used to be in Rule 14 of the 1964 Rules of Court where it was

misplaced. I do not know why notice of lis pendens which refers to
lands, titles and deeds appears under the rules on Summons. It was
misplaced so they place it under Rule 13 which is also misplaced.
Exception:
NOTICE OF LIS PENDENS is a notice of pending action or litigation

between the parties involving title to or right of possession over
real property.
A: YES. The law states that The plaintiff and the defendant may
register when affirmative relief is claimed in this answer. In such
case, a defendant may register and normally it is done when there
is a counterclaim. The defendant is also interposing a defense with
the same property.
Q: Under Section 14, can the defendant register a notice of lis

pendens?
Requisites:
1)
2)
3)
4)
Action affects the title or the right of possession of a real

property;
Affirmative relief is claimed;
Notice shall contain the name of the parties and the
object of the action or defense and a description of the
property affected thereby; and
Action in rem (AFP Mutual Benefit Association, Inc. vs.
CA GR No. 104769, March 3, 2000)
Take note that the action in this case affects the right of possession
over real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules cannot
be removed without the order from the court and generally the
court cannot issue the order until the case is finished or until the
final issue of the case is determined.
This serves as a warning to all persons that a particular real

property is in litigation, and that one who acquires an interest over
said property does so at his own risk, or that he gambles on the
result of the litigation over said property (Lee Tek Sheng vs. CA, GR
No. 115402, July 15, 1998)
EXCEPTION: But in some rare instances, the SC has authorized the

cancellation of the notice of lis pendens even when the case is not
yet terminated. One of which is contemplated under Section 14:
After proper showing that the notice is: [a] For the purpose of
molesting the adverse party; or [b] It is not necessary to protect the
rights of the party who caused it to be recorded. In the case of
It may involve actions that deal not only with the title or possession
of a real property, but even with the use or occupation thereof.
(Ake hernudd, Gosta Jansbo, Hans ryngelsson, Peter Lofgren and
Jordana Holdings Corporation, for itself and on behalf of San Remo
Development Corp. Inc., vs. Lars E. Lofgren, Liza Salcedo-Lofgren,
Leosyl Salcedo and San Remo Development, Inc., GR No. 140337,
Sept. 27, 2007).
ROXAS vs. DY 233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover

a piece of land registered in the name and possessed by the
defendant. The case has been going on for more than 1 year,
the plaintiff has been presenting evidence he plaintiff has not
yet shown that he has right over the land.
The defendant may also record a notice of lis pen dens when he
claims an affirmative relief in the answer.
This is part of the Property Registration Law. The essence of notice
of lis pendens is a notice against the whole world against sale or
mortgage of the property under litigation. And whoever deals with
it is accepting the risk. Anybody who buys it is gambling on the
outcome of the case. He cannot claim he is the mortgagee or buyer
in good faith because there is a notice.
HELD: So there is no more basis of notice of lis pendens

because your purpose is to harass the defendant for over a
year litigation without showing right over the land.
While a notice of lis pendens cannot ordinarily be cancelled
for as long as the action is pending and unresolved, the proper
court has the authority to determine whether to cancel it
under peculiar circumstances, e.g., where the evidence so far
presented by the plaintiff does not bear out the main
allegations in the complaint.
I will file a case for recovery of a piece of land and the title is in
your name. There is a danger that you will sell the land to others
who know nothing about the case. So if I win the case and try to
recover it to the buyer, the buyer will say he bought the land in
good faith, I did not know that there is a pending action
concerning this land. And under the law, he is protected because
he is a buyer in good faith and for value. This is if there is no notice
of lis pendens. The other risk is that the owner of the land will
mortgage his property.
A person buying a property with a notice of lis pendens is buying it
subject to the outcome of the case. So you are gambling.
187

Rule 14
jurisdiction over the person of the defendant (Haban vs. Vamenta,

33 SCRpersonal
SUMMONS
Effect of Non-Service
Section 1. Clerk to issue summons. Upon the

filing of the complaint and the payment of
the requisite legal fees, the clerk of court
shall forthwith issue the corresponding
summons to the defendants. (1a)
Unless the defendant voluntarily submits to the jurisdiction of the

court, non-service or irregular service of summons renders null and
void all subsequent proceedings and issuances in the action from
the order of default up to and including the judgment by default
and the order of execution.
Summons is the writ by which the defendant is notified of the

action brought against him (Cano-Gutierrez vs. Gutierrez, 341
SCRA 670; Guanzon vs. Arradaza 510 SCRA 309).
The non-service or invalidity of service of summons may be a

ground for dismissal for lack of jurisdiction over the person of the
defending party.
Summons in civil cases is the counterpart of warrant of arrest in

criminal cases. Under the Rules on Criminal Procedure, when an
information is filed in court, the judge will issue a warrant of arrest.
In civil cases, when a complaint is filed in court, the court will issue
what is known as a summons under Section 1.
Note: Where the defendant has already been served with

summons on the original complaint, no further summons is
required on the amended complaint if it does not introduce new
causes of action. (Ong Peng vs. Custodio, GR No. 14911, March 25,
1961)
The issuance of summons is not discretionary on the part of the

court or the clerk of court but is a mandatory requirement. Section
1 directs that the clerk of court shall issue the corresponding
summons to the defendant upon
But where the defendant was declared in default on the original

complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on the
amended complaint as the original complaint was deemed
withdrawn upon such amendment (Atkins vs. Domingo GR No. L19565, March 24, 1923)
(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 service of summons.
General Rule: When an additional defendant is joined, summons

must be served upon him.
Purpose of summons
Exceptions:
Jurisdiction over the person of the defendant in a civil case is
acquired either by his voluntary appearance or service of summons
upon him (Minucher vs. CA GR No. 142963, Feb. 11, 2003)
1.
2.
In actions in personam
3.
In action in personam, the purpose of summons is not only

a)
b)
When the administrator of a deceased party defendant

substitutes the deceased;
Where upon the death of the original defendant his heirs
are made parties; and
In cases of substitution of the deceased under Sec. 16 R
3)
Note: In these instances, the service of the order of substitution is

sufficient.
to notify the defendant of the action against him

but also to acquire jurisdiction over his person
(Umandap vs. Sabio, Jr. 339 SCRA 243).
In actions in rem or quasi in rem
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. Acquisition of
jurisdiction over the latter is accomplished by a valid service of
summons upon him assuming he does not make a prior voluntary
appearance in the action. Service of summons logically follows the
filing of the complaint.
In an action in rem or quasi in rem, jurisdiction over the defendant

is not mandatory and the court acquires jurisdiction over an action
as long as it acquires jurisdiction over the res. The purpose of
summons in these actions is not the acquisition of jurisdiction over
the defendant but mainly to satisfy the constitutional requirements
of due process (Gomez vs. CA 420 SCRA 98; Biaco vs. Phil.
Countryside Rural Bank 515 SCRA 106; PCI Bank v. Alejandro 533
SCRA 738).
Uniformity of the rules on summons
Service of summons is required even if the defendant is aware of

the filing of the action against him. His knowledge of the existence
of a case is not one of the modes by which a court acquired
The rules on summons apply with equal force in actions before the
RTC and first level courts. This is because the procedure in the first
level shall be the same as in the second level except (a) where a
188

particular provision expressly or impliedly applies only to either of

said courts, or (b) in civil cases governed by the Rules on Summary
Procedure (Sec. 1, Rule 5).
A: NO. The order of the court ordering him to be substituted is

already sufficient. Anyway he is only a continuation of the
personality of the original defendant. Just serve the copy of the
order, where he is ordered to be substituted. (Fetalino vs. Sanz, 44
Phil. 691)
Section 2 states the contents of a summons:

Sec. 2. Contents. The summons shall be
directed to the defendant, signed by the clerk
of court under seal, and contain:
BAR QUESTION: If a defendant is served with summons and later

on the complaint is amended by the plaintiff, is there a necessity
that another summons be issued and served based on the
amended complaint? Or is the summons of the original complaint
sufficient?
(a) the name of the court and the names of

the parties to the action;
(b) a direction that the defendant answer
within the time fixed by these Rules;
(c) a notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
ANS: It depends on whether the amendment was made before or

after defendants appearance in the action:
Q: What do you mean by the phrase appearance in the
action?
A copy of the complaint and order for

appointment of guardian ad litem, if any,
shall be attached to the original and each
copy of the summons. (3a)
A: The best example is, whether the defendant files an answer

to the complaint. Appearance in civil cases does not mean
that you are there and show your face to the judge. That is
not the meaning of the word appearance. Appearance
means filing something in court which would show that the
court has jurisdiction over your person, like the filing of an
answer. When the defendant filed an answer through his
lawyer, there is now appearance of the defendant.
Service of summons without copy of the complaint

Is the defendant bound to comply with the summons where service
was made without attaching a copy of the complaint?
In Pagalaran vs. Bal-latan 13 Phil. 135, the defendant was served
summons but without a copy of the complaint. She 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 SC 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.
The SC, while admitting that the service of summons was defective,
treated the defect as having been waived by the defendants failure
to seasonably challenge the trial courts jurisdiction over her
person. She should have appeared to challenge the jurisdiction of
the court.
a)
If the defendant has not filed answer to the original

complaint there must be another summons issued on
the amended complaint. A new summons must be
served all over again based on the amended complaint.
(Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b)
If the defendant has already filed an answer to the

original complaint or he has already appeared in the
action, and after that the complaint is amended, there is
no need of issuing new summons on the amended
complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March
1961)
Q: Connecting the question with Rule 11 (on periods to file

pleadings), suppose the defendant was served with summons on
the original complaint and before he could answer, there is now an
amended complaint, so there will be new summons on the
amended complaint, what is the period to file an answer?
Q: If a complaint is amended and an additional defendant is

included, is there a necessity of issuing new summons on the
additional defendant?
A: The period to file an answer is 15 days all over again. There will
be another period of 15 days to file an answer to the amended
complaint upon receipt of the amended complaint and the
summons.
A: YES. When an additional defendant is included in the action,

summons must be served upon him for the purpose of enabling the
court to acquire jurisdiction over his person. The case is
commenced against the additional defendant upon the
amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691)
Q: Suppose the defendant has already filed an answer to the

original complaint and after that there is an amended complaint,
what must the plaintiff do?
Q: Suppose a defendant, who has already been summoned, died,

and there was substitution of party (under Rule 3), his legal
representative was substituted in his place, is there a necessity of
issuing new summons on the substituted defendant?
A: This time, there is no need of summons. All that the plaintiff has
to do is to furnish the defendant a copy of the amended complaint
together with the motion to admit it. Just serve the defendant a
189

copy of the amended complaint with a copy of the order admitting

the filing of the amended complaint.
HELD: NO, he is not authorized. The policeman is not a sheriff,

he is not a deputy sheriff, and he is not a proper court officer.
He belongs to the PNP. And PNP is under the executive
branch and not a part of the judiciary.
Q: Suppose that the court allowed the admission of the amended

complaint, what is the period for the defendant to file an answer to
the amended complaint?
However, there is no problem if he is the only one in that area

whom we can depend on. All you have to do is get a court order
deputizing the police officer. So he will fall under no. 3. But
without such court order, he is not among those mentioned in
Section 3.
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not
from the receipt of the amended complaint, but from receipt of the
order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an
answer by the defendant. However, according to the SC in the case
of:
Q: When summons is served, must it be on a weekday and not on

Saturday, Sunday, or holiday, and must be within office hours? Can
you challenge the validity of the service of summons on the ground
that it was not effected on a working day or during office hours?
PAN ASIATIC TRAVEL CORP. vs. CA 164 SCRA 623
A: In the case of
HELD: Appearance in the action is not only limited to the filing

of an answer. When defendant files a motion for extension of
time to file his answer, that is already an appearance in the
action. If a defendant files a motion for Bill Of Particulars
under Rule 12, that is already considered as an appearance in
the action.
LAUS vs. COURT OF APPEALS 214 SCRA 688
HELD: The service of summons is valid because the service of

summons is MINISTERIAL. Service of summons may be made
at night as well as during the day, or even on a Sunday or
holiday because of its ministerial character.
SEC. 3 By whom served the summons may

be served by the sheriff, his deputy, or other
proper court officers, or for justifiable
reasons by any suitable person authorized by
the court issuing the summons (5a)
SEC. 4 Return When the service has been

completed, the server shall, within five (5)
days therefrom, serve a copy of the return,
personally or by registered mail, to the
plaintiffs counsel and shall return the
summons to the clerk who issued it,
accompanied by proof of service (6a)
Q: Who can serve summons? Who are authorized by law to serve

summons?
A: Under Section 3, the following:
1)
2)
3)
4)
The person who served the summons is the sheriff or his deputy.
After that, it is the duty of the sheriff to inform the court what has
happened was he able to serve the copy of the complaint,
together with the summons to the defendant? If so, on what day?
The duty of the sheriff after service of summons is that he should
make a report to the court as to what happened. That is what is
called a sheriff's return.
Sheriff;
Deputy sheriff;
Other proper court officer (court employees); or
For justifiable reasons, by any suitable person authorized
by the court issuing the summons.
Note: The enumeration is exclusive
EXAMPLE: Respectfully returned to the court with the information

that defendant was personally served with summons on this date
and on this time as shown by his signature on the face of this
original copy. Or, Respectfully returned to the court with the
information that defendant cannot be served with summons
because the defendant had already moved from the address
indicated in the complaint and therefore he cannot be located.
NOTE: Policemen cannot validly serve summons unless authorized

by court. (Sequito vs. Letrondo, L-11580, July 20, 1959)
EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I
dont think the sheriff would like to go there. But there are people
who go there, like the natives. So Barangay Captain Acelar will be
asked to be deputized by the court to serve and he will be taught
how to do it. So, he will become a sort of special court officer for
that purpose. But there must be a court order.
There must be a report because that will determine when the

period to file an answer will start to run. Or, if he failed to serve it
for one reason or another, like for example, the defendant is no
longer residing in that place and you cannot find him, at least you
must also return the summons to the court and make a report that
you cannot serve the summons. That is what you call the Sheriffs
Return under Section 4, Rule 14.
SEQUITO vs. LETRONDO L-11580, July 20, 1959

FACTS: The summons was served by a policeman in a remote
area and the question that was asked is whether he is
authorized.
190

He must also furnish a copy of his report to the plaintiffs lawyer so

that the plaintiffs lawyer can determine what is the deadline for
the defendant to file his answer.
First Mode: SERVICE IN PERSON (Section 6)

SEC. 6. Service in person on defendant
Whenever practicable, the summons shall be
served by handing a copy thereof to the
defendant in person, or if he refuses to
receive and sign for it, by tendering it to him
(7a)
SEC. 5 Issuance of Alias Summons if a

summons is returned without being served
on any or all of the defendants, the server
shall also serve a copy of the return on the
plaintiffs counsel, stating the reasons for the
failure of service, within five (5) days
therefrom, in such case, or if the summons
has been lost, the clerk, on demand of the
plaintiff, may issue an alias summons (4a)
Q: How is service in person done?

A: It is effected by
(a) handing a copy thereof to the defendant in person, or (
(b) if he refuses to receive and sign for it, by tendering it to
him.
Now Section 5 contains this new requirement that the serving

officer shall also serve a copy of the return on the plaintiff's counsel
stating the reasons for the failure of service within 5 days
therefrom. They should tell the lawyer what happened so that if
the summons was not served, the lawyer can file a motion for
issuance of an alias summons, like he cannot serve the summons
because the defendant is not already in the address given. It will
then be the problem of the plaintiff and his lawyer to locate the
new address of the defendant or counsel and file said motion.
The summons must be served in person. This is literal, the

summons must be served upon the defendant himself not to
anybody else.
Q: Do you have to serve it to the defendant in his office or in his
house?
A: NO. You can serve it wherever he may be found. And the law
does not care where to do it.
Alias summons is one issued when the original has not produced its
effects because of a defect in form or in the manner of service, and
when issued supersedes the first writ.
EXAMPLE: I am the sheriff. Im looking for you to serve summons in

a case and while walking along New York Street, I saw you inside a
restaurant. I entered the restaurant and served the summons
there. Then you say, Not here. Give it to me at home. Under the
law, service is in person. There is no need for me to go to your
house. I can serve the summons wherever I find you.
Q: What happens if the summons is returned unserved on any or

all of the defendants?
A: The server shall serve also a copy of the return on the plaintiffs
counsel, stating the reasons for the failure of service.
Q: Now suppose, normally, you give the copy and you ask him to
sign the original summons but he refuses, what will I do?
Q: For what purpose?

A: So that the plaintiffs lawyer will have to look now for the
defendant and once he finds the correct address, he has to inform
the court of the new address so that a new summons can be issued
on the new address. The second summons is what lawyers call an
ALIAS SUMMONS if the first summons was lost, upon being
informed, the clerk of court will issue another summons known as
an ALIAS SUMMONS.
A: I will write here in my return that I saw you, I offered but you
refused. That is enough. Under the law, you are served. The court
has already acquired jurisdiction over your person.
The common impression of laymen is if it is not received then there
is no proper service. No, that is of course false. You cannot defeat
a court process by refusing to accept it. And under the law, from
that moment, you are bound.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL

DEFENDANTS:
Now, under the 1964 rules, this mode of service of summons was
called PERSONAL SERVICE. Under the 1997 Rules, the personal
service was changed to SERVICE IN PERSON. They just changed
the words so that it cannot be confused with Rule 13 because in
Rule 13, there is also personal service. But that is not service of
summons but service of pleadings, motions, etc. To avoid
confusion, personal service was changed to service in person.
Because service under Rule 13 is also personal service to the
secretary but here in Rule 14, it is literal. Service in person on the
defendant.
Now lets go to the general modes on service of summons. This is a

very important portion of Rule 14.
Q: How is summons served?
A: There are three (3) modes of service of summons (on
individual defendant):
1)
2)
3)
Section 6 Service in person on defendant;

Section 7 Substituted service (Section 7); and
Sections 14, 15, 16 Service by publication;
191

Service of summons in actions in personam / Service in person

preferred
2.)
In an action strictly in personam, service in person on the

defendant is the preferred mode of service (Hamilton vs. Levy 344
SCRA 821). This is done by handing a copy thereof 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. If the defendant
refuses the service, the server should not resort to substituted
service immediately. He must tender the summons to him.
Tender of summons is not a separate mode of service. It is a part of
service in person.
But note the condition: If, for justifiable causes, the defendant
cannot be served within reasonable time as provided in the
preceding section xxx.
So, if the server cannot serve you the summons personally,
because he cannot find you despite several attempts, then he can
served it on your wife or child, who is around, or the housemaid or
houseboy, provided they are of suitable age and discretion.
For substituted service of summons to be valid, it is necessary to
establish the following:
Substituted service when proper

If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 be availed of.
The sheriff or server must first exert all efforts to serve the
defendant in person. If this effort fails, then substituted service can
be made. This effort must be stated in the proof of service. This is
required because substituted service is in derogation of the usual
mode of service (Laus vs. CA 219 SCRA 688; Umandap vs. Sabio, Jr.
339 SCRA 243; Samartino vs. Raon 383 SCRA 66; Hamilton vs. Levy
344 SCRA 821.
Second Mode: SUBSTITUTED SERVICE (Section 7)
1)
The impossibility of the personal service of summons

within a reasonable time;
2)
The efforts exerted to locate the person to be served;

and
3)
Service upon a person of sufficient age and discretion

residing in the same place as defendant or some
competent person in charge of his office or regular place
of business.
In substituted service, the sheriff's return must show that an effort

or attempt was exerted to personally serve the summons on the
defendant and that the same failed. (Sps. Venturanza vs. CA GR.
No. 77760, Dedc. 11, 1987)
What is substituted service?

SEC. 7 Substituted Service If, for justifiable
causes, the defendant cannot be served
within reasonable time as provided in the
preceding section, service may be effected (a)
by leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion then residing
therein, or (b) by leaving the copies at
defendants office or regular place of
business with some competent person in
charge thereof (8a)
Within a reasonable time has been interpreted to contemplate a

period of time longer than that demarcated by the word prompt
and presupposes that a prior attempt at personal service had failed
(Laus vs. CA 219 SCRA 688).
The case of Manotoc vs. 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.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
substituted service to be available there must be several attempts
by the sheriff to personally serve the summons within a reasonable
periodSeveral attempts means at least three (3) tries,
preferably on at least two different dates. In addition the sheriff
must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.
If the defendant cannot be served personally or in person under

Section 6, the sheriff may resort to what is known as SUBSTITUTED
SERVICE OF SUMMONS under Section 7. This time, you can course
it to somebody else. The place is important and the person to
whom you will serve it.
On service in person under Section 6, it is immaterial where you
find the defendant. What is important is it is served in person.
But if you want resort to substituted service under Section 7), you
better have to do it by leaving copies of the summons:
1.)
in his office or regular place of business with some

competent person in charge thereof, like the manager or
the foreman.
The Sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service (citing
Domagas vs. Jensen, 448 SCRA 663). The efforts made to find the
defendant and the reason 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 defendant,
at the defendants residence with some person of

suitable age and discretion residing therein; or
192

the name/s of the alleged occupants of the alleged residence or

house of the defendant and all other acts done, though futile, to
serve the summons on the defendant must be specified in the
Return to justify substituted service.
Effect when substituted service is valid but defendant failed to

actually receive summons
Where the substituted service has been validly served, its validity is
not affected by the defendants 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 the defendants residence
or office was actually delivered to the defendant (Montalban vs.
Maximo, supra).
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 vs. CA, supra). 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 vs. Boyon 414 SCRA 216).
The proof of service of summons must

(a)
A person of suitable age and discretion defined
indicate the impossibility of service of summons within a

reasonable time;
(b) specify the efforts exerted to locate the defendant; and
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:
(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 officer 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 officers
return. The failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the service
of summons ineffective (Jose vs. Bayon 414 SCRA 216; Miranda vs.
CA 326 SCRA 278).
Discretion is defined as the ability to make decisions 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
recipients 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. These matters
must be clearly and specifically described in the Return of
Summons.
Service of summons to resident defendant but temporarily out

Substituted service in addition to service by publication under
Section 16 in relation to Sec. 15
In a suit in personam against a resident of the Philippines
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 (Montalban vs. Maximo 22 SCRA
1070; Valmonte vs. CA 252 SCRA 92).
A competent person in charge of the office or regular place of

business defined
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 country is, of course, in addition to the
summons by publication authorized by Sec. 16 in relation to Sec. 15
of this Rule.
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 vs. CA)
An ineffective substituted service has certain adverse effects. First,

the period to file a motion to dismiss for lack of jurisdiction over
the defendants 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 vs. CA
It is not necessary that the person in charge of the defendants

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).
193

219 SCRA 688). Second, the trial court does not acquire jurisdiction
over the person of the defendant (Laus vs.CA 219 SCRA 688;
Litonjua vs. CA 80 SCRA 246).
service of summons? Can a sheriff resort to Section 7 (substituted

service) immediately?
A: NO. Section 7 cannot be applied unless you attempt Section 6
(Service in person). The sheriff has to try several times to reach the
defendant in person. Sheriff is not allowed to resort to substituted
service without attempting service in person several times.
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?
Q: So what is the condition?
In one case, the Sheriff was forced to serve the summons upon the
subdivision security guard because he was refused entry therein
upon instruction of the defendant.
A: Substituted service of summons can only be applied by the

sheriff if there is failure of personal service within reasonable time
for justifiable causes [under Rule 14, Section 7]. So if the wife says,
come back tomorrow, so you have to come back tomorrow and
you cannot yet serve substituted service of summons.
The SC ruled:
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 (Paluwagan ng Bayan Savings Bank vs. King
GR 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.
Q: But suppose, the sheriff has gone to your house 5 times,

everytime he goes there you are not around, is substituted service
of summons allowed?
A: YES. I will now serve it on you (through your wife) and that is
valid. The law prefers service in person than substituted.
Substituted service according to SC, should only be resorted to if
there is failure of personal service within reasonable time for
justifiable causes. (Mapa vs. CA, 214 SCRA 417)
In his Return, the sheriff declared that he was refused entry by the
security guard in the subdivision. The latter informed him that
petitioner prohibits him from allowing 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
petitioner. We note that she failed to controvert the sheriffs
declaration. Nor did she deny having received the summons
through the security guard.
MAPA vs. CA 214 SCRA 417

HELD: If a sheriff resorts to substituted service under Section
7 and when he makes his return, his return must specify that
I have tried many times to resort to personal service, but he
cannot do it. He must outline his efforts to apply Section 6,
otherwise the return is defective.
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 jurisdiction over her.
Impossibility of prompt service should be shown by stating

the efforts failed. This statement should be made in the proof
of service. This is necessary because substituted service is in
derogation of the usual method of service.
The summons was therefore, properly served (Robinson vs.

Miralles 510 SCRA 678).
Now, of course, if I tried several times to serve you personally but I

failed, and then I make a return but I did not explain, there is still a
valid service but you must explain in court. There is a presumption
that you did not exert efforts. To make it a complete return, you
must outline several attempts to make personal service.
SEQUIOTO vs. LETRONDO - L-11580, July 20, 1959

FACTS: Summons was served by the sheriff on the defendants
daughter, a 12-year old and a grade four pupil. The child
threw the summons away. The father did not receive the
summons, and he was declared in default.
[Substituted service of summons may still be considered as VALID

even if the sheriff failed to state in his return of the facts of the
impossibility of prompt service if the server subsequently explains
in court, by giving testimony, the facts why he resorted to a
substituted service. The plaintiff should not be made to suffer for
the lapses committed by an officer of the court]
HELD: The service of summons is void because defendants

daughter, under the circumstances, is not a person of suitable
discretion.
Q: Suppose, the sheriff goes to the defendants house and says, Is
this the residence of Mr. Juan dela Cruz? Yes. Is he around?
No, he left for work, but he will be back 5 hours from now. The
sheriff left the summons to the wife, sufficient of age and
discretion. In other words, the sheriff resorted to substituted
service of summons under Section 7. Is there a valid substituted
TOYOTA CUBAO INC. vs. CA October 23, 1997
HELD: A law prescribing the manner in which the service of

summons should be effected is jurisdictional in character and
its proper observance is what dictates the courts ability to
194

take cognizance of the litigation before it. Compliance

therewith must appear affirmatively in the return. It must be
so as substitute service is a mode that departs or deviates
from the standard rule. Substitute service must be used only
in the way prescribed, and under circumstances authorized by
law.
failed, then serve it on the clerk of court. And that is known as

substituted service.
In Rule 14, there is NO such thing as service of summons through
registered mail. So how can a summons be served to a defendant
in Manila? The Davao sheriff will mail the summons to the Manila
sheriff who will serve the summons to the defendant in Manila.
DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]

AND SERVICE OF SUMMONS [RULE 14]
So, there is a difference in meaning. Substituted service of

summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Now, do not confuse substituted service of summons under Rule 14

with substituted service of pleadings, orders and other papers
under Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION :

(Sections 14, 15, and 16)
Let us read Section 6, Rule 13:
SERVICE BY PUBLICATION UNDER SECTION 14

(Suing an Unknown Defendant)
Rule 13, SEC. 6. Personal service. - Service of

the papers may be made by delivering
personally a copy to the party or his counsel,
or by leaving it in his office with his clerk or
with a person having charge thereof. If no
person is found in his office, or his office is
not known, or he has no office, then by
leaving the copy, between the hours of eight
in the morning and six in the evening, at the
party's or counsel's residence, if known, with
a person of sufficient age and discretion then
residing therein. (4a)
Going back to Section 9, Rule 13:

Rule 13, SEC. 9. Service of judgments, final
orders or resolutions. - Judgments, final orders
or resolutions shall be served either
personally or by registered mail. When a
party summoned by publication has failed to
appear in the action, judgments, final orders
or resolutions against him shall be served
upon him also by publication at the expense
of the prevailing party. (7a)
FIRST DISTINCTION: In Rule 13, that is known as personal service.

In Rule 14, that is known as substituted service. Service of
summons is governed by a different rule (Rule 14) from service of
pleadings, judgments and other papers (Rule 13).
Under Rule 13, when a party summoned by publication has failed

to appear in the action, meaning the defendant failed to file an
answer, the decision can also be served upon him by publication.
Now, what is substituted service in Rule 13? Let us go back to

Section 8, Rule 13.
As a rule 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.
Rule 13, SEC. 8. Substituted service. - If service

of pleadings, motions, notices, resolutions,
orders and other papers cannot be made
under the two preceding sections, the office
and place of residence of the party or his
counsel being unknown, service may be
made by delivering the copy to the clerk of
court, with proof of failure of both personal
service and service by mail. The service is
complete at the time of such delivery. (6a)
Against a resident, the recognized mode of service is service in

person on the defendant under Sec. 6. In a case where the
defendant cannot be served within a reasonable time, substituted
service will apply (Sec. 7), but not summons by publication which is
permissible however, under the conditions set forth in Sec. 14
(where the identity or whereabouts of the defendant are unknown)
and in Section 16 (when the defendant is a resident temporarily
out of the Philippines).
SECOND DISTINCTION: In Rule 14, substituted service means if you

cannot serve the defendant in person, then you serve the
summons at the residence of the defendant with some person of
suitable age and discretion residing therein or by leaving copies at
the defendants office or regular place of business with some
competent person in charge thereof. That is substituted service of
summons under Rule 14.
Against a non-resident, jurisdiction is acquired over the defendant

by service upon his person while said defendant is within the
Philippines. As once held, when the defendant is a non-resident,
personal service of summons in the state is essential to the
acquisition of jurisdiction over him (Banco de Brasil vs. CA 333
SCRA 545). 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.
But in Rule 13, substituted service of other pleadings, judgments,

orders, etc., if personal service or service by registered mail have
195

Publication is a 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 vs. CA 470 SCRA 697). Publication is
likewise not a mode of service in an action in personam against a
defendant except under certain situations (Sections 14 and 16).
Of general circulation and in such places and for such time as the
court may order. Hindi naman kailangan sa Daily Inquirer. Puwede
man sa local paper, ba. For example, sabihin mo: We learned that
he is in Cebu pero saan sa Cebu, we do not know. The court may
order the publication to be published in a local newspaper of
general circulation in Cebu. Of course, kasama diyan ang
complaint. How many times? Bahala na ang court. Say, tatlong
issues. So, every Monday for three weeks. Basta the presumption
is mabasa yan ng defendant or at least somebody who must have
read it will inform the defendant. So, the law requires that you
must file a motion and ask the court to allow service of summons
by publication.
Q: What are the instances where a defendant may be served with

summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
Now, one thing that you have to remember is, the whereabouts of
the defendant is unknown, but he is in the Philippines. That is the
condition. If he is in the United States, this will not apply. What is
contemplated by Section 14 is that the address of the defendant is
unknown but it is positive that he is in the Philippines.
And the first one is service upon defendant whose identity or

whereabouts are unknown. That is what you call suing an
unknown defendant. Or, the defendant is known but his
whereabouts are not known. But definitely, he is in the Philippines.
That is the important condition. So, let us read Section 14:
ILLUSTRATION: Suppose your friend borrowed money from you.

Never paid you and just disappeared and the last time you heard,
he is residing somewhere in General Santos City. So you wanted to
sue by having the summons under Section 14 because his exact
whereabouts is unknown. So you file a motion for leave to serve
summons by publication under this rule. The question is, should the
court allow it? Of course the tendency is to say yes because his
whereabouts is unknown and cannot be ascertained by diligent
inquiry.
Sec. 14. Service upon defendant whose identity

or whereabouts are unknown. In any action
where the defendant is designated as an
unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may,
by leave of court, be effected upon him by
publication in a newspaper of general
circulation and in such places and for such
time as the court may order. (16a)
Q: Now what kind of an action is an action to collect an unpaid loan

where the defendant cannot be located anymore?
Under this provision, service of summons is allowed:

1)
2)
A: That is an action in personam.
where the defendant is designated as unknown owner.

Well, we have discussed that in Rule 3 when you file a
case against an unknown defendant is allowed. But of
course, he is unknown, you have no idea where he is
staying; and
Q: If the defendant is in the Philippines and his whereabouts is

unknown and the action is in personam, can the plaintiff resort to
service summons by publication?
A: In the cases of
where the defendant is known but his whereabouts are

unknown and cannot be ascertained by diligent inquiry.
FONTANILLA vs. DOMINGUEZ 73 Phil. 579

Take note that to avail of summons by publication, there must be
leave of court. You must file a motion, under Rule 14, for
permission to have defendant summoned by publication and the
court will issue an order allowing the defendant be served with
summons by publication where the complaint and the summons be
ordered published. The service may 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.
HELD: In this case, SC said service of summons is possible even

if the action is in personam because service by publication
when the whereabouts of the defendant is unknown is
allowed whether the case is in personam or in rem. It is
proper in all actions without distinction provided, the
defendant is residing in the Philippines but his identity is
unknown or his address cannot be ascertained.
So if we will follow this case what will be our answer? YES, because
it is allowed in any action without distinction.
Section 14 allows service of summons by publication, if the

whereabouts of the defendant is unknown, after diligent inquiry
and with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be
accompanied by a motion in writing, supported by an affidavit
setting forth the grounds for the application (Pacana-Gonzales vs.
CA, GR No. 150908, Jan. 21, 2005)
PANTALEON vs. ASUNCION 105 Phil 755
HELD: NO, because service of summons by publication under

this section is allowed only where the action is in rem or quasi
196

in rem, not in personam. In order to bind the defendant there

must be service of summons on him. Personal, he must know.
But in actions in rem quasi in rem, pwede.
CONSOLIDATED PLYWOOD vs. BREVA 166 SCRA 589 (Davao

case)
HELD: Judge Breva fell into the error of allowing service of
summons by publication by allowing it in an ordinary
collection case. SC said you cannot do that, the action must
be in rem or quasi in rem. Therefore the default judgment
was rendered null and void because of lack of proper service
of summons to the defendant.
It is a well settled rule in constitutional law that an action in

personam, personal service of summons within the Philippines
(forum) is essential in the acquisition of jurisdiction over the
person of the defendant who does not voluntarily submit
himself to the authority of the court.
In other words, summons by publication is not consistent with the
due process clause of the bill of rights because it confers court
jurisdiction over said defendant who is not in the Philippines. So
service of summons by publication of the defendant who cannot be
found in the Philippines will be violative of the due process clause
that he must be informed personally. He must be given a chance
under due process to be deprived of his property with due
process of law. So if we will follow the ruling in this case, the
answer would be NO because the action is in personam (collection
case). So nag-conflict na.
Q: What is the important doctrine based from the foregoing cases?

A: The SC said that Section 14 can only be availed of when the
action is in rem or quasi in rem. If the action is in personam, like of
collection of a sum of money, service of summons by publication to
the defendant is improper. The action should be action in rem or
quasi in rem.
Q: Therefore if your action is in personam, like collection of an
unpaid obligation, and you cannot find the defendant and you want
to avail of Section 14, what is you remedy?
CITIZENS INSURANCE SURETY vs. MELENCIO-HERRERA 38

SCRA 369
A: As explained by the SC, you convert the action to in rem or quasi

in rem. How? By looking for any property of the said defendant and
have it attached under Rule 57 [i], the last ground for attachment.
Now, your action is converted to quasi in rem. You can now file a
motion for service of summons by publication. (Pantaleon vs.
Asuncion, 105 Phil. 765; Citizens Surety & Insurance Co., vs.
Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto,
125 SCRA 758; Plywood Industries vs Breva, 166 SCRA 589)
ISSUE: What is the remedy if you are a creditor and you want
to sue your debtor and serve summons by publication but you
cannot do it because your case is in personam?
HELD: (Reiterates Pantaleon vs. Asuncion) You convert your
case from in personam to in rem or quasi in rem. How? If you
cannot find the defendant but he has properties left, you can
have that properties attached under Rule 57, Section 1 so that
you can acquire a lien over said properties. Now that it is
attached, civil action is converted from in personam to quasi
in rem because you already acquire a lien over the property so
it is quasi in rem. You can now ask the court to effect
summons by publication..
In all these cases, the SC ruled that to validly serve summons by

publication on a defendant who is in the Philippines but whose
name is not known or whereabouts is not known, the action must
be in rem or quasi in rem.
But a minor insignificant amendment to Section 14 has cast doubt
on the validity of those doctrine. Why? You read the opening of
Section 14: In any action you notice, in any action where the
defendant is designated as an unknown You look at the old
rules. Can you find the phrase in any action? You look and
compare it. Let us look the 1964 Rules:
The proper recourse for a creditor in the same situation as

petitioner is to locate properties, real or personal, of the
resident defendant debtor with unknown address and cause
them to be attached under Rule 57, Sec. l(f), in which case,
the enactment converts the action into a proceeding in rem or
quasi in rem and the summons by publication may then
accordingly be deemed valid and effective. So kahit isang
bisekleta para lang ma-convert ang action.
1964 Rules, Rule 14, SEC. 16 Whenever the

defendant is designated as an unknown
owner, or the like, or whenever the address
of a defendant is unknown and cannot be
ascertained by diligent inquiry, service may,
by leave of court be effected upon him by
publication in a newspaper of general
circulation and in such places and for such
time as the court may order.
MAGDALENA ESTATE INC. vs. NIETO - 125 SCRA 758
SC traced the history of this questionwe reiterate CITIZEN

and PANTALEON, the action must be in rem or quasi in rem.
[That is why just read this case because it is a complete
summary of what the SC said earlier. And of course after it,
from time to time, this issue re-surfaces.]
In other words, there is a case and the defendant is unknown, but

what kind of cases? It is not stated there (Section 16, old rules).
Kaya nga, it was clarified in the cases of MAGDALENA ESTATE,
PANTALEON, etc. that the action must be in rem or quasi in rem.
197

But look at the new rule on Section 14 in any action. What does
that mean na puwede na ang action in personam? Is the intention
of this clause to abrogate the previous ruling in PANTALEON,
MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If that is the
intention, we are going back to the original ruling laid down in the
earlier case of FONTANILLA vs. DOMINGUEZ which preceded all the
other cases.
domestic corporation must have been registered with the

Securities and Exchange Commission and that the SEC records
would, therefore, reveal not just the correct address of the
corporate headquarters of Good Earth but also the addresses
of its directors and other officers.
Foregoing distinctions no longer applicable
Summons by way of publication may with leave of court be
availed of where a defendant involved in any action (in rem,
quasi in rem and in personal) is designated as an unknown
owner or whenever his whereabouts are unknown and cannot
be ascertained. The summons shall be effected through
publication in a newspaper of general circulation and in such
places and for such time as the court sets.
In the FONTANILLA case, the SC said that service of summons by

publication is proper in all actions without distinctions provided the
defendant is residing in the Philippines but he is unknown or his
address cannot be ascertained. But the FONTANILLA ruling was
abrogated by PANTALEON vs. ASUNCION, CITIZENS SURETY,
MAGDALENA ESTATE cases. That is why to me, this is a very
controversial issue whether Section 14 of Rule 14 applies only to
cases in rem or quasi in rem in these decisions or it is now
obsolete, or it is now applicable whether in personam or in rem or
quasi in rem.
In Santos vs. PNOC GR No. 170943, Sept. 23, 2008) the

Supreme Court held that the in rem/in personal distinction
was significant under the old rule because it was silent as to
the kind of action to which the rule was applicable. Because of
this silence, the court limited the application of the old rule to
in rem actions only. This has been changed. The present rule
expressly states that it applied to any action where the
defendant is designated as unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now applies to any
action, whether in personal, in rem or quasi in rem.
So I was wondering what is the meaning of this in any action

whether there is an intent to return to the old rule and cancel the
rulings in MAGDALENA. To me, this is a question mark. Even Justice
Jose Feria, in his note, cannot answer it. Sabi niya, in any action
but there is a case, decided in MAGDALENA... He is the author,
one of the authors, but he cannot explain the intention. Sabi niya:
the SC earlier ruled I asked, but why did you insert that? Kaya
to my mind, it is still a question mark. Maybe it is just an
inadvertent amendment without any intention to abrogate the
ruling in MAGDALENA, PANTALEON, etc. But maybe that is the
intention.
If property is attached and later the defendant appears (and

voluntarily submits to the jurisdiction of the court), the case
becomes mainly a suit in personam ( Villareal vs. CA GR No.
107314, Sept. 17, 1998)
SERVICE BY PUBLICATION UNDER SECTION 15

(Extraterritorial Service)
So, let us wait for the proper case at the right time to find what is
the intention of the phrase in any action.
When the defendant is not residing in the Philippines and he is not

physically around he must be served with summons even if he is
abroad and that is what is called extraterritorial service. We go
back to the basic question:
BALTAZAR vs. CA December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation was

sued. Sheriff went to the address of the corporation but the
corporation was no longer there. It moved to another place.
Subsequently, the sheriff returned the summons to the court.
Plaintiff Baltazar filed a motion for leave to serve the
summons and a copy of the complaint upon defendant Good
Earth by publication
Q: Can you sue in the Philippines a defendant who is not residing in

the Philippines and who is not around physically?
A: NO, you cannot because there is no way for the court to acquire
jurisdiction over his person EXCEPT when action is in rem or quasi
in rem, like when the action is the personal status of the plaintiff
who is in the Philippines or the properties of the defendant are in
the Philippines. And the venue is where the plaintiff resides or
where the property is situated. That is found in Section 3, Rule 4:
ISSUE: Can there be a proper service by publication in this

case?
HELD: NO. Service by Publication (Section 14) will not apply
because there was no diligent inquiry made by the sheriff.
Rule 4, SEC. 3. Venue of actions against

nonresidents If any of the defendants do not
reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff or
any property of said defendant located in the
Philippines, the action may be commenced and
tried in the court of the place where the plaintiff
resides, or where the property or any portion
thereof is situated or found.
Under Section 14, therefore, petitioner must show that the

address of Good Earth was unknown and that such address
could not be ascertained by diligent inquiry. More
importantly, We do not believe that the acts of the sheriff
satisfied the standard of diligent inquiry established by
Section 14 of Rule 14. The sheriff should have known what
every law school student knows, that Good Earth being a
198

Q: If the defendant who is not around and is not residing in the

Philippines can be sued under Rule 4, how will you serve
summons?
A: Let us break up Section 15. There are four (4) instances when a
defendant who does not reside and is not found in the Philippines
may be sued and summons served by extraterritorial service,
provided the case is in rem or quasi in rem:
A: This is answered by Section 15:

1.)
Sec. 15. Extraterritorial service. When the
defendant does not reside and is not found in
the Philippines, and the action affects the
personal status of the plaintiff or relates to,
or the subject of which is, property within the
Philippines, in which the defendant has or
claims a lien or interest, actual or contingent,
or in which the relief demanded consists,
wholly or in part, in excluding the defendant
from any interest therein, or the property of
the defendant has been attached within the
Philippines, service may, by leave of court, be
effected out of the Philippines by personal
service as under section 6; or by publication
in a newspaper of general circulation in such
places and for such time as the court may
order, in which case a copy of the summons
and order of the court shall be sent by
registered mail to the last known address of
the defendant, or in any other manner the
court may deem sufficient. Any order
granting such leave shall specify a reasonable
time, which shall not be less than sixty (60)
days after notice, within which the defendant
must answer. (17a)
the action affects the personal status of the plaintiff;

EXAMPLE: A child left behind files a case against his
father for compulsory recognition or acknowledgement
at least to improve his status because the res is the
status of the plaintiff.
2.)
when the action relates to or the subject of which is,

property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent;
3.)
when the action relates to or the subject of which is,

property within the Philippines in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein; or
4.)
When the property of the defendant has been attached

within the Philippines that is the MAGDALENA case.
NOTE: The action must be either action in rem or quasi in
rem. So an action in personam can never be filed against
a non-resident defendant. That is the similarity between
Section 14 and 15 on the assumption of the ruling in the
MAGDALENA is still intact. Even if the defendant is not
in the Philippines, the action must be in rem or quasi in
rem. That is their similarity the action must be
classified as in rem or quasi in rem. That is if we follow
the MAGDALENA ESTATE ruling.
Extraterritorial service of summons under this Section 15 applies

when he following requisites concur:
It must be noted that extra-territorial service of summons or

summons by publication applies only when the action is in rem or
quasi in rem. The first is an action against the thing itself instead of
against the defendant's person; in the latter, an individual is named
as defendant and the purpose is to subject the individual's interest
in a piece of property to the obligation or loan burdening it. An
action for specific performance is an action in personam, hence
summons by publication is improper. (Sps. Jose vs. Sps. Boyon, GR
No. 147369, Oct. 23, 2003).
(a) the defendant is a non-resident;

(b) he is not found in the Philippines; and
(c) the action against him is either in rem or quasi in rem
(Jose vs. Boyon 414 SCRA 216).
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 (Kawasaki Port Service Corporation vs. Amores 199 SCRA
230; Banco do Brasil vs. CA 333 SCRA 545 [2000]) .
Q: What is the difference between Section 14 and Section 15?

A: The difference between Section 14 and 15 is that in Section 14,
the defendant is in the country but his exact whereabouts is
unknown, whereas in Section 15, he is really out of the country and
is no longer residing here.
The possible exception to this rule is provided for under Sec. 16

(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 Section 15. Note also
that Sec. 16 refers to any action, hence, either in rem or in
personam.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect. 15?
Q: In what instances can you sue in the Philippine courts a

defendant who does not reside and is not found in the Philippines?
The other way of asking is, when may a defendant be sued and
served with summons by extraterritorial service?
A: Service may, with leave of court, be effected in the Philippines:
199

a.)
By personal service under Section 6;
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
order of the court shall be sent by registered mail
to the last known address of the defendant; or
The second manner is by publication which is similar to Section 14.

The court will order the summons and complaint to be published in
a newspaper of general circulation in such places and for such time
as the court may order. In which case a copy of the summons and
order of the court shall be sent by registered mail to the last known
address of the defendant.
c.)
In any other manner the court may deem sufficient.

(Carriaga vs. Malaya, 143 SCRA 441)
So, aside from publication, another copy will be sent by registered

mail to his last known address.
SAHAGUN vs. CA 198 SCRA 44
a.) modes of extraterritorial service; PERSONAL SERVICE

c.f. Section 6 Rule 14 Sheriff, deputy sheriff, officer of the court,
other persons authorized by court with valid order. The court will
order that he will be served with summons just like in Section 6.
We will ask the court to allow summons to be served outside the
Philippines by personal service by sending the sheriff to America.
Bigyan siya ng visa, round trip ticket with pocket money. That is
personal service. But that is very expensive. That could be done
pero impractical.
FACTS: Defendant is residing permanently in LA, this is an

action in rem. By leave of court, summons was served
through publication by ordering to be published for 3 weeks in
the Philippine Daily Inquirer. Another copy will be sent to his
last address. Here defendant questioned the publication.
According to him, publication should be in a newspaper in LA,
not the Philippines. How can I be expected to read it when it
is published in the Philippines, nobody will bring it to my
attention. But if it is published here, the probability that I
read it is stronger or my neighbor will bring it to my attention.
Or, I would like to sue a defendant who is there. I have a friend

who is a balikbayan and he knows where that defendant is residing.
So I will ask the court that the defendant who is residing in
California be served with summons personally through this person.
As if he is deputized or he can send the summons to the Philippine
embassy with a request for an employee of the embassy to serve
the summons personally.
ISSUE #1: Is the contention of the defendant correct?

HELD: NO, he is wrong because nothing in the law requires
the publication to be in a foreign newspaper. What it says is a
newspaper of general circulation in such places and for such
time as the court may order. Well, if the court will order that
it should be published in a newspaper in LA, puwede rin. If it
orders that it should be in a local newspaper, puwede rin
because the law does not say only such places.
Rianos commentaries
The personal service using the procedure in Sec. 6 will not have the
effect of acquiring jurisdiction over the non-resident defendant
even if the summons and the copy of the complaint are personally
served and received by him in the country where he may be found.
This is because of the rule that a non-resident 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 vs. Palanca 37 Phil.
921; Perkins vs. Dizon 69 Phil. 186). Besides 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 vs. CA 296
SCRA 539). Compliance with due process is actually the underlying
purpose of all modes of extraterritorial service.
ISSUE #2: What would happen if we will follow the argument

of the defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we
will require courts to order the publication in a foreign
newspaper, then we will require the court to have a list of all
the newspaper in LA and our courts will be required to know
the rules and rates of publication in LA and suppose the same
thing happens to a defendant in San Francisco, the courts are
required to have a list, rules and rates of publication in said
place. And you can imagine if we have to do that in every city
in every country in the world. Imagine the trouble? It is
requiring the court too much.
In fine, while there is no prohibition against availing of a
foreign newspaper in extraterritorial service of summons,
neither should such publication in a local newspaper of
general circulation be altogether interdicted since, after all,
the rule specifically authorizes the same to be made in such
places and for such time as the court concerned may order. If
the trial court should be required to resort to publication in a
foreign newspaper it must have at hand not only the name
and availability of such newspaper or periodical. We can very
well anticipate the plethora of problems that would arise if
the same question on nonresident defendants is replicated in
the other countries of the world.
b.) modes of extraterritorial service; BY PUBLICATION IN A

NEWSPAPER OF GENERAL CIRCULATION IN SUCH PLACES AND
FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A
COPY OF THE SUMMONS AND ORDER OF THE COURT SHALL BE
SENT BY REGISTERED MAIL TO THE LAST KNOWN ADDRESS OF
THE DEFENDANT
200

ISSUE #3: Is extraterritorial service of summons under Section

15 a mode of acquiring jurisdiction over the person of the
defendant?
that is in personam. But if he files an answer, he is now submitting

his person to the jurisdiction of the court. There could now be a
valid judgment not only on the res but also on the damages. That
was the explanation in the case of SAHAGUN.
HELD: NO, even if you will publish the summons a hundred

times in a newspaper, still the Philippine court will not acquire
jurisdiction over the person of the defendant because it is
simply out of the country. Even if he is served with summons,
our processes have no effect outside Philippine territory.
The relief is limited to the res so there could be no relief for

damages unless he voluntarily submits himself to the jurisdiction of
the court.
c.) modes of extraterritorial service; IN ANY OTHER
MANNER WHICH THE COURT MAY DEEM SUFFICIENT
Actually, there is no need to acquire jurisdiction over the

person of the defendant. What is important is that res is in the
country so we can enforce the judgment so that ownership
may be transferred to plaintiff. So, hindi kailangan ang
jurisdiction over his person.
That is a very general term. A good example of that was what

happened in the case of
CARRIAGA, JR. vs. MALAYA 143 SCRA 441
ISSUE #4: What is then the purpose of the requirement of

publication? Why will I be required to publish but just the
same the court will not acquire jurisdiction over his person?
FACTS: Plaintiff files a case against his father in the US who

has no intention of coming back in the Philippines, for
compulsory acknowledgement or recognition as an
illegitimate child. And he is suing as an indigent litigant.
HELD: The purpose of publication is to comply with the

requirement of due process. He should be informed before he
loses his property. Remember that he has properties in the
Philippines which you can want to take away form him.
Remember the principle that if there is no way for the court to
acquire jurisdiction over the person of the defendant, the
substitute is jurisdiction over the res, and the res is property
here. So, the judgment will not be useless and it can be
enforced. But at least, the owner who is abroad should be
informed about it.
Suppose the court will say, Do you know the address of your
father in the U.S.? Plaintiff, Yes, and I even know the zip
code. Judge, If we will mail the complaint and the summons
by registered mail in the post office, that will cost you P15 to
P30. Kaya mo ba? Plaintiff, Siguro. I will raise that amount.
That is what happened in the case of MALAYA. They mailed
the summons abroad and the defendant received it. The
defendant questioned.
Service of summons on a nonresident defendant who is not

found in the country is required, not for purposes 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 in the Philippines 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, if he be so minded. The
only relief that may be granted in such an action against such
a nonresident defendant, who does not choose to submit
himself to the jurisdiction of the Philippine court, is limited to
the res.
ISSUE: Is there a valid service of summons under Section 15

through registered mail?
HELD: YES. It would fall under In any other manner the court
may deem sufficient. And that is what exactly happened in
this case at bar where the court allowed the service of
summons abroad by a registered mail. Of course, the
defendant received the letter but still challenged the
jurisdiction of the court, the manner of service of summons
on the ground that it is not by personal service or publication
but by registered mail.
That is why also in the case of SAHAGUN, the SC emphasized that if

the summons is served by publication, any judgment that the court
can render is only good for the res. But if he submits now to the
jurisdiction of the court by filing an answer or by hiring a lawyer in
the country, the court can now render also a judgment in
personam against him. But if he will not submit, ok lang because
anyway, the res is here. [bahala siya kung san siya masaya, ti
suportahan ta!]
And since the defendant has received the summons, due

process has been served and the case can now proceed.
So in other words, it is very queer. The SC said extraterritorial
service of summons by registered mail may fall under the third
mode of service under Section 17 (now, Section 15) In any other
manner the court may deem sufficient. There is no denial of due
process to be informed because you were informed so you cannot
resort to technicality.
EXAMPLE: I will file a case against a non-resident defendant for

recovery of a piece of land and damages. Well, the claim for
recovery of land is in rem. The claim for damages is in personam.
He is summoned by publication and based on the SAHAGUN ruling,
the court can only render judgment insofar as the land is
concerned. It cannot render judgment on the damages because
Q: Is there such a thing as service of summons by registered mail

under Rule 14?
201

A: NONE. Only personal service or by publication. Unlike in Rule 13,

when you serve and file a pleading there is such a thing as service
by registered mail.
REASON #1: First of all, the case at bar is an action for

partition and accounting under Rule 69. So, it is an action
quasi in rem. Since this is an action quasi in rem and Lourdes
Valmonte is a non-resident who is not found in the
Philippines, summons on her must be in accordance with Rule
14, Section 15. So you must follow the modes of service under
Section 15 because the action is quasi in rem.
Q: But how come in MALAYA case it is allowed?

A: Because it was considered as falling under the general phrase,
In any other manner the court may deem sufficient not because
it is allowed but the court considered it as deemed covered under
the phrase.
In this case, the service of summons was not effected

personally because it was served on the husband. There was
also no publication. The only possibility is the third one, in
any other manner the court may deem sufficient.
Q: If the court allows service of summons abroad, then what is the

period to file an answer?
But the third mode applies only when you are serving the
summons abroad. You cannot apply this when you are serving
the summons in the Philippines. So it does not also fall under
the third mode. This mode of service, like the first two, must
be made outside of the Philippines such as through the
Philippine Embassy in the foreign country where the
defendant resides.
A: The non-resident is given not less than 60 days to file an answer.

It is given a longer period in order to give him more time. This is
related with Section 1 rule 11: The defendant shall file his answer
to the complaint within 15 days after service of summons, UNLESS
a different period is fixed by the court.
And take note that under Section 17, there must be a motion to
effect service of summons by publication.
REASON #2: Under Section 17, leave of court is required when

serving summons by publication. There must be a motion
where the court will direct that the summons be served in
that manner.
Sec. 17. Leave of court. Any application to the

court under this Rule for leave to effect
service in any manner for which leave of
court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff
or some person on his behalf, setting forth
the grounds for the application. (19)
In this case, was there any motion filed here? Wala man ba.
Was there any order of the court authorizing it? Wala rin. So it
does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when
the defendant is a non-resident and being served abroad
under Section 15, the law guarantees a minimum of sixty (60)
days to answer the complaint pursuant to Section 15.
He must file a motion under Section 17 to effect service of

summons by publication. The court will then issue an order.
Now in 1996, there was a case decided by the SC on the
extraterritorial service of summons. The case of
And here, she was only given fifteen (15) days to file the
answer. Therefore, there was an erroneous computation of
the period to answer.
VALMONTE vs. CA 252 SCRA 92 [1996]

FACTS: Here, the defendant is Lourdes Valmonte who is a
foreign resident. She is residing abroad. Her husband, Alfredo
Valmonte, who is also her attorney, has a law office in the
Philippines. He is Atty. Valmonte yung mga Valmonte sa
checkpoint cases in Constitutional law. He is an
activist-lawyer. So, his wife is residing abroad but he is here,
because he is practicing in the Philippines.
Finally, and most importantly, because there was no order

granting such leave, Lourdes Valmonte was not given ample
time to file her Answer which, according to the rules, shall be
not less than sixty (60) days after notice. It must be noted that
the period to file an Answer in an action against a resident
defendant differs from the period given in an action filed
against a nonresident defendant who is not found in the
Philippines. In the former, the period is fifteen (15) days from
service of summons, while in the latter, it is at least sixty (60)
days from notice.
Now, the sister of Mrs. Valmonte filed a case against her for
partition of real property. You know that you have to implead
all the co-owners. The summons intended for Lourdes was
served on her husband in the latters law office because
anyway, the husband is here.
So those are the three main reasons cited by the SC on why there
was improper service of summons on Lourdes Valmonte under the
rules.
ISSUE: Was there a valid service of summons on Lourdes

Valmonte?
HELD: There is NONE. There was no valid service of summons.
202

SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
In such cases, what gives the court jurisdiction in an action in rem

or quasi in rem is that it has jurisdiction over the res, i.e., the
personal status of the plaintiff who is domiciled in the Philippines
or the property litigated or attached. Service of summons in the
manner provided in Section 15, Rule 14 of the Rules of Court is not
for the purpose of vesting the court with jurisdiction, but for
complying with the requirements of fair play or due process, so
that the defendant will be informed of the pendency of the action
against him; and the possibility that property in the Philippines
belonging to him, or in which he has an interest, might be
subjected to a judgment in favor of the plaintiff and he can thereby
take steps to protect his interest if he is so minded. (Regner v.
Logarta, GR No. 168747, Oct. 27, 2007).
Sec. 16. Residents temporarily out of the

Philippines. When any action is commenced
against a defendant who ordinarily resides
within the Philippines, but who is temporarily
out of it, service may, by leave of court, be
also effected out of the Philippines, as under
the preceding section. (18a)
In an action in personam, personal service of summons or, if this is
not possible and he cannot be personally served, substituted
service, as provided in Sec. 7, Rule 14 of the Rules of Court, is
essential for the acquisition by the court of jurisdiction over the
person of a defendant who does not voluntarily submit himself to
the authority of the court. If the defendant cannot be served a
summons because he is temporarily abroad, but is otherwise a
Philippine resident, service of summons may, by leave of court, be
made by publication. Otherwise stated, a resident defendant in an
action in personam, who cannot be personally served a summons,
may be summoned either by means of substituted service in
accordance with Section 7, Rule 14 of the Rules of Court, or by
publication as provided in Sections 15 and 16 of the same Rule.
Summary:
A.
Defendant is a resident but identity or whereabouts

unknown (Sec. 14)....in any action (in rem, in personam,
quasi in rem) .... summons may be served by publication
in a newspaper of general circulation with leave of court;
B.
Defendant is a non-resident and not found in the

Philippines (Sec. 15) ... only in rem and quasi in rem
In all of these cases, it should be noted, defendant must be a

resident of the Philippines, otherwise an action in personam cannot
be brought because jurisdiction over his person is essential to make
a binding decision.
On the other hand, 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. If the defendant is a non resident and he is
not found in the country, summons may be served extraterritorially
in accordance with Sec. 15, Rule 14 of the Rules of Court.
2.
relates to or the subject of which is property

located in the Philippines in which defendant has a
lien or interest; or
3.
demands a relief which consists wholly or in part in

excluding the defendant from any interest in any
property in the Philippines; or
4.
property of defendant has been attached in the

Philippines) ....
(a) with leave of court serve outside the

Philippines by personal service; or
(b) with leave of court serve by publication in a
newspaper of general circulation in which
case a copy of the summons and order the
court must also be sent by registered mail to
the last known address of defendant; or
(1) when the action affects the personal status of the

plaintiff;
(2) when the action relates to, or the subject of which is
property within the Philippines, on which the defendant
claims a lien or an interest, actual or contingent;
(c) any other manner the court deem sufficient.
(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
C.
(4) when the defendant non-resident's property has been

attached within the Philippines. In these instances,
service of summons may be effected by
b.
c.
affects the personal status of plaintiff;
service is extraterritorial
There are only four instances wherein a defendant who is a nonresident and is not found in the country may be served a summons
by extraterritorial service, to wit:
a.
1.
Defendant is a resident but temporarily out of the

Philippines (Section 16) .... any action .... By substituted
service or with leave of court, personal service out of the
Philippines as under extraterritorial service.
Note: In all these cases, it should be noted that defendant must be

a resident of the Philippines, otherwise, an action in personam
cannot be brought because jurisdiction over his person is essential
to make a binding decision (Belen vs. Chavez, GR No. 175334,
March 28, 2008).
personal service out of the country, with leave of

court;
publication, also with leave of court; or
any other manner the court may deem sufficient.
203

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.
ISSUE #1: Can substituted service of summons be applied to a

defendant who is residing in the Philippines but temporarily
out?
Let it be noted that summons by publication may be effected

against the defendant because publication is one of the modes of
service of summons under Sec. 15. 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. This is because even if he is abroad, he has a
residence in the Philippines or a place of business and because
certainly, he cannot be served within a reasonable period because
of his absence in the Philippines, this absence would now trigger
the application of the rule on substituted service of summons
(Montalban vs. Maximo).
HELD: YES. Substituted service is also applicable. Unlike

Section 15 where the defendant has no residence here, you
have a residence man. The sheriff resorted to substituted
service by leaving it to the person in charge, a person of
sufficient age and discretion because for justifiable reasons,
substituted service is also applicable even if the defendant is
outside of the Philippines.
It is true that personal service of summons is preferred. But if
the personal service cannot be effected within a reasonable
time, the sheriff can resort to substituted service. And in your
case, the sheriff cannot serve personally because you will be
out of the country for the next four or five months. So the
sheriff has to resort to substituted service.
Q: What is the main difference between defendant in Section 15

and in Section 16?
ISSUE #2: Second, sabi niya, Equity na lang. That is unfair, eh,
because I really had no knowledge about the case. I failed to
answer because you see, during the five months when I was
abroad, I never had the opportunity to call up the one I left
behind. So there was no opportunity for me to ask him what
has been happening there. He has also no opportunity to tell
me about what happened because he does not know where I
was. So I only learned about it after five months. So in the
name of equity please set aside the judgment.
A: In section 15, defendant is residing abroad and not even found

in the Philippines, while in Section 16 defendant is residing in the
Philippines but temporarily out of the Philippines.
EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered
a resident defendant temporarily out of the Philippines. I can sue
her but it will take months before she comes back. The problem is,
your action will already prescribe.
Q: How will you serve summons to him?
HELD: In the name of equity, we will not set aside the

judgment. You did not even bother to call and tell the person
left where you were. When you called up perhaps the person
left could notify you about the summons. You are very
irresponsible! What kind of a person are you? You will leave
for abroad and you will not even bother to call up to find out
what is going on. So, wala!
A: According to Section 16, you can serve summons just like in

Section 15 through personal service, by publication, and in any
other manner the court may deem sufficient. So one option is to
wait for him to come back and then serve the summons personally.
One of the leading cases on this type of defendant was in the old
case of:
So the case of MONTALBAN provides that the service of summons

under Section 16 on the defendant doesnt prevent the application
of Section 7 in addition to Section 15. Summons can be served
abroad just like in Section 15 but it does not mean to say that you
cannot apply Section 7 because anyway it does not say MUST, it
uses MAY.
MONTALBAN vs. MAXIMO 22 SCRA 1070

FACTS: In this case, the defendant is residing in the Philippines
but on a world tour and he will be out for so many months.
Naga-tour ba! It was at that time when the summons was
served in his residence. Well of course, he is not there. But
there was somebody left in the house. So, the sheriff said,
Who are you? And the person said that he is the one in
charge here. When is your boss coming back? Mga four or
five months pa.
And one thing that you will notice in Section 16 is that the action is
IN PERSONAM. It is purely an action for damages. So in Section 16,
when residents are temporarily outside of the Philippines, there
could be also substituted service of summons in addition to Section
15 and the action could be in personam as distinguished from
Sections 14 and 15 where the action must be in rem or quasi in
rem.
So, the sheriff served upon the person in charge the

summons. So, the sheriff resorted to substituted service
under Section 7. And there was a default judgment. Pagbalik
ng tao, defaulted na siya, meron ng execution. So he
questioned the service of summons because under Section 16,
in relation to Section 15, summons must be served with leave
of court by personal, publication or in any other manner.
So the action in Section 16 need not be an action in rem or quasi in

rem because he is actually residing in the Philippines and only
temporarily out.
204

SERVICE OF SUMMONS IN EXCEPTIONAL CASES
is not necessary for the court officer to go into the jail and look for
the prisoner.
3.) SERVICE OF SUMMONS UPON MINORS AND
INCOMPETENTS
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT

JURIDICAL PERSONALITY
Sec. 10. Service upon minors and

incompetents. When the defendant is a
minor, insane or otherwise an incompetent,
service shall be made upon him personally
and on his legal guardian if he has one, or if
none, upon his guardian ad litem whose
appointment shall be applied for by the
plaintiff. In the case of a minor, service may
also be made on his father or mother. (10a,
11a)
Sec. 8. Service upon entity without juridical

personality. When persons associated in an
entity without juridical personality are sued
under the name by which they are generally
or commonly known, service may be effected
upon all the defendants by serving upon any
one of them, or upon the person in charge of
the office or place of business maintained in
such name. But such service shall not bind
individually any person whose connection
with the entity has, upon due notice, been
severed before the action was brought. (9a)
Relate this to Rule 3, Section 3 on Representatives as Parties

trustee of a trust, guardian, administrator, etc.
Section 8 is related to Rule 3, Section 15:
Q: When you sue a minor or an insane, how is summons served?
Rule 3, Sec. 15. Entity without juridical

personality as defendant. When two or more
persons not organized as an entity with
juridical personality enter into a transaction,
they may be sued under the name by which
they are generally or commonly known.
A: You serve the summons to the father or mother in the case of

minor. For a legal guardian, in the case of incompetent people or
to the minor himself.
Q: The law says that service shall be made upon him (the minor)
personally when he may not understand what it is all about? Baka
itatapon lang niya iyon.
In the answer of such defendant, the names

entity must all be revealed. (15a)
A: Because under Rule 3, he is the real party in interest.

4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE
JURIDICAL ENTITY.
Q: Since you can sue someone without juridical personality, how do

serve summons upon him?
Sec. 11. Service upon domestic private juridical

entity. When the defendant is a corporation,
partnership or association organized under
the laws of the Philippines with a juridical
personality, service may be made on the
president, managing partner, general
manager, corporate secretary, treasurer, or
in-house counsel. (13a)
A: Under Section 8, by serving summons upon anyone of them,

that is sufficient. Service upon any of those defendants is service
for the entire entity already. You may also serve summons upon
the person in charge of the office of the place of business. He may
not necessarily be the owner but in-charge of the office, he can be
served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A
PRISONER
What do you mean by domestic? A corporation or association

organized under Philippine laws.
Sec. 9. Service upon prisoners. When the

defendant is a prisoner confined in a jail or
institution, service shall be effected upon him
by the officer having the management of
such jail or institution who is deemed
deputized as a special sheriff for said
purpose. (12a)
Now, how do you serve summons to a corporation? Actually, they

have no physical existence, they only exist by legal friction.
Ordinarily summons must be served to a human being, to
somebody who is supposed to be the representatives. Therefore,
common sense will tell that in case of a corporation, you have to
serve the summons through people who run the corporation.
Q: How do you serve summons to somebody who is a prisoner?
Q: To whom do you serve summons if it is a corporation?
A: Under Section 9, summons shall be served through the person

in-charge of the jail like the jail warden. The jail warden is
automatically considered as deputized to serve it to the prisoner. It
A: In the case of a corporation, summons is served upon its officers.
205

Q: Who are these officers?
summons upon an in-house counsel of a corporation is valid. It

binds the corporation under the ruling in the case of PHILIPPINE
OIL MKTG. CORP. vs. MARINE DEVT CORP. (117 SCRA 879) and
FAR CORPORATION vs. FRANCISCO(145 SCRA 197) that the inhouse counsel if served with summons, there is a valid service,
because anyway, if you serve it to the general manager or the
President, chances are it will also be referred to him kay siya man
ang abogado. So the in-house counsel is new and it confirms what
the SC said.
A: President, managing partner, general manager, corporate

secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the
Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply
manager. Now they added the word general. But even in the
old law, the word manager is interpreted as general manager. In
a corporation, there are so many managers like branch managers.
General manager is the over-all manager of the corporation
throughout the Philippines. He is usually based in the head office.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the
summons on any of the directors of the corporation MEMBERS of
the BOARD ba. Now, wala na yan ngayon. I think the only member
of the Board here is the Corporate Secretary. So, the directors,
hindi na puwede.
CORPORATE SECRETARY. The prior law only used the word

secretary but it has been interpreted as corporate secretary, not
the typist secretary. The corporate secretary is the custodian of
the records of the corporation. He is also a stockholder, because
you cannot be a corporate secretary unless you are a stockholder.
The new law has already emphasized corporate secretary. Before
illiterate sheriffs used to serve summons on secretary-typist.
But here is the most radical change. The word AGENT, nawala na!
Did you notice under the old law, there is agent. The word agent
was so broad and so general that the SC has actually included there
so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA
77 [1995]), the summons was served to the Operations Manager of
the corporation and the SC said the service was valid because he is
considered as an agent.
TREASURER. The prior law says cashier now they have changed
the word to treasurer. It is because treasurer is actually an officer
also. He is just like a budget secretary of the government. Cashiers
are ordinary employees which is more on clerical works.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the
summons was served on the Assistant General Manager of the
corporation and the SC said that the service was valid because he is
an agent.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is

actually employed by the corporation. He takes care of the legal
problems. In Manila, for instance, most of the corporations there
have in-house counsels. Not so much here in Davao. Like Ayala
Corporation in Manila, they have internal legal counsel more or less
10 while Bank of Philippine Island has around 15. But these
corporations hire lawyers from the outside when it comes to
sensitive cases. They are referred as external legal counsel.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197),

the summons was served on the Chief of Finance and
Administrative Section of the corporation and the SC said that he
will fall under the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and
ATM TRUCKING vs. BUENCAMINO (124 SCRA 434) the service of
summon an employee employed in a corporation does not bind the
corporation because an ordinary employee who is not an officer is
not considered as agent.
In the fairly recent case of Paramount Insurance Corp. vs. A.C.

Ordonez Corporation GR 175109 August 6, 2008 the Court
reiterated the rule that Sec. 11 sets out an exclusive enumeration
of the officers who can receive summons on behalf of the
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.
Declared the Court:
However, there are cases were the service of summons to an

ordinary employee who is not an officer was valid. Among which
are:
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.
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397

[1985]), the summons was served on the confidential secretary of
the President and the SC said the service is valid. She is qualified as
agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466),
reiterated in the case of GOLDEN FARMS vs. SUN BAR
DEVELOPMENT CORPORATION (214 SCRA 295), the summons was
served on a mere clerk of the corporation. So, he is not even an
officer. But the clerk gave it to the President. The SC said that the
The rule that summons may be served on internal legal counsel,

although appearing for the first time in the 1997 rules, is actually
an old rule. It has been ruled already in some cases that service of
206

defect is cured. The clerk could be considered as an agent. The

need for speedy justice must prevail over technicality. So, the word
agent has become very broad and it practically covers all
corporate officers who are presumed to be responsible.
subdivision. ID, filed a Complaint for Breach of Contract and

Damages against Villarosa before the RTC allegedly for failure
of the latter to comply with its contractual obligation.
Summons, together with the complaint, were served upon
Villarosa, through its Branch Manager Wendell Sabulbero at
the address at CDO but the Sheriffs Return of Service stated
that the summons was duly served "E.B. Villarosa & Partner
thru its Branch Manager at their new office Villa Gonzalo,
CDO, and evidenced by the signature on the face of the
original copy of the summons."
Now, in the 1997 rules, the word agent disappeared. And the law
is very clear: President, managing partner, general manager,
corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of course
the corporation will say that there is no valid service of summons.
OK, it is void. But look at the case of GESULGON, etc. But that is
under the 1964 rules when you are deemed to be an agent. But
now, it is very specific. The intention of the new rules is to limit the
service to anyone of these. That is why they removed the word
agent.
Villarosa prayed for the dismissal of the complaint on the

ground of improper service of summons and for lack of
jurisdiction over the person of the defendant. Villarosa
contends that the RTC did not acquire jurisdiction over its
person since the summons was improperly served upon its
employee in its branch office at CDO who is not one of those
persons named in Sec. 11, Rule 14 upon whom service of
summons may be made. ID filed a Motion to Declare Villarosa
in Default alleging that Villarosa has failed to file an Answer
despite its receipt allegedly on May 5, 1998 of the summons
and the complaint, as shown in the Sheriff's Return.
And if that interpretation prevails that the intention of the rules is

to limit to these people, it is now very difficult to sue a corporation
based in Makati if you are here in Davao because your summons
has to be coursed through them. And these people are not here!
The President is not here; The General Manager, etc. They are all
based in the head office. Corporate Secretary, treasure, in-house
counsel Doon man ang opisina nila ba. The ones based here are
branch managers and they are now disqualified. If that is the
intention of the law, my golly! That is another headache!
HELD: We agree with Villarosa. Earlier cases have uphold

service of summons upon a construction project manager; a
corporation's assistant manager; ordinary clerk of a
corporation; private secretary of corporate executives;
retained counsel; officials who had charge or control of the
operations of the corporation, like the assistant general
manager; or the corporation's Chief Finance and
Administrative Office. In these cases, these persons were
considered as "agent" within the contemplation of the old
rule.
It can be argued both sides eh. Despite this, we should stick to the
principle that technicalities should not give way.
Suppose I will serve it on the Branch Manager. He forwarded it to
their President in Manila. Eh ano pa ngayon ang reklano ninyo?
Anyway you already acquired it, you learned about it. Can you
insist that the court has no jurisdiction when actually you are well
aware already of the suit? You can say, let us go to reality. But it
can also be argued under the old law. Precisely, if the intention is
to make everybody a responsible officer, then the word agent
should have been retained. The intention of the law is to limit only
to these people. So, both sides can be defended.
Notably, under the new Rules, service of summons upon an

AGENT of the corporation is NO LONGER authorized.
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.
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.
Section 11 thus becomes another controversial provision. Whether

this change has abrogated GESULGON, FAR EAST CORP., SUMMIT
TRADING na pwede. All those doctrines have now been rendered
obsolete because of this change. All those cases were decided
based on the word agent are they agents? At least there is
basis, eh. Now, the word agent is no longer there. That is why this
is a controversial provision.
A strict compliance with the mode of service is necessary to

confer jurisdiction of the court over a corporation. The officer
upon whom service is made must be one who is named in the
statute; otherwise the service is insufficient. . . 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.
E.B. VILLAROSA LTD vs. BENITO 312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with

principal office address at 102 Juan Luna St., Davao City and
with branch offices at Paraaque and Cagayan de Oro City
(CDO). Villarosa and Imperial Development (ID) executed an
Agreement wherein Villarosa agreed to develop certain
parcels of land in CDO belonging to ID into a housing
Service of summons upon persons other than those

mentioned in Section 13 of Rule 14 (old rule) has been held as
improper. Accordingly, we rule that the service of summons
207

upon the branch manager of Villarosa at its branch office at

CDO, instead of upon the GM at its principal office at Davao
City is improper. Consequently, the RTC did not acquire
jurisdiction over the person of Villarosa. The fact that Villarosa
filed a belated motion to dismiss did not operate to confer
jurisdiction upon its person. There is no question that the
Villarosas voluntary appearance in the action is equivalent to
service of summons.
A: The entity or corporation under Section 11 is domestic while

under Section 12, the corporation is a foreign corporation but
doing business in the Philippines because the law says, when the
defendant is a foreign private juridical entity which transacted
business in the Philippines
When a foreign corporation is not doing business in the Philippines,
it cannot be sued, just like a non-resident defendant. The best
example of a foreign corporation doing business in the Philippines
are air line companies, foreign banks.
Before, the rule was that a party may challenge the

jurisdiction of the court over his person by making a special
appearance through a motion to dismiss and if in the same
motion, the movant raised other grounds or invoked
affirmative relief which necessarily involves the exercise of
the jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. This
doctrine has been abandoned in the case of La Naval Drug
Corporation vs. CA which became the basis of the adoption of
a new provision in Section 20 of Rule 14.
Q: To whom do you serve summons in this case?

A: Well, that is already touched in Rule 11, Section 2. If it has a
designated resident agent, you must serve it to him. If it has none,
then to the appropriate Philippine government officer who will
transmit it to the head office.
Q: What is the period to file answer?
A: Under Rule 11, Section 2, the period to file an answer is longer if
summons is served on a government official designated by law for
that purpose, the period is 30 days. But if the foreign corporation
has a designated resident agent in the Philippines and summons is
served on him, the period to answer is only 15 days just like any
other defendant.
Section 20 now provides that the inclusion in a motion to

dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary
appearance. The emplacement of this rule clearly underscores
the purpose to enforce strict enforcement of the rules on
summons. Accordingly, the filing of a motion to dismiss,
whether or not belatedly filed by the defendant, his
authorized agent or attorney, precisely objecting to the
jurisdiction of the court over the person of the defendant can
by no means be deemed a submission to the jurisdiction of
the court.
NORTHWEST ORIENT AIRLINES vs. CA 241 SCRA 192 [1995]

HELD: When there is a designated resident agent to receive
summons, service of summons to that person is exclusive. He
is the only one to be served with summons in behalf of the
corporation sued. So, if there is a designated agent, siya lang.
He is the only person authorized to receive the summons.
There being no proper service of summons, the trial court

cannot take cognizance of a case for lack of jurisdiction over
the person of the defendant. Any proceeding undertaken by
the trial court will consequently be null and void.
If a foreign corporation has designated an agent to receive

summons the designation is exclusive. Service of summons is
without force and gives to a court no jurisdiction unless made
upon him.
WHEREFORE, the petition is hereby GRANTED. The assailed

Orders of the public respondent trial court are ANNULLED and
SET ASIDE.
BALTAZAR vs. CA 168 SCRA 354 [1988]
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE

JURIDICAL ENTITY
FACTS: The summons was to be served on the corporation at

an address. But when the sheriff went to that address, he was
told by the security guard that the corporation was no longer
holding office there. Lumipat na sa ibang lugar. Therefore, we
do not know already.
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. (14a)
So, ni-report niya, Hindi ko makita. Therefore, the plaintiff

filed a motion in court to be allowed to serve summons by
publication under Section 14 when the whereabouts of the
defendant is unknown. So there was service of summons by
publication.
ISSUE: Was there a valid service of summons by publication?
Q: What is the difference between corporation or entity in Section

11 and Section 12?
HELD: There was NONE. The deputy sheriff should have

known what every law school student knows! that
208

defendant, being a domestic corporation must have been

registered with the SEC and that the SEC records would
therefore reveal, not just the correct address of the corporate
headquarters of the defendant, but also the address of its
officers.
business in the Philippines. So, if a foreign corporation is not doing

business in the Philippines, it cannot be sued, just like a nonresident defendant because the court can never acquire
jurisdiction over that person or foreign corporation. We know that
no?
A litigant or process server who has not gone through the

records of the SEC cannot claim to have carried out the
diligent inquiry required under the law for valid service of
summons by publication upon a domestic corporation.
And the perennial debate is, when is a foreign private corporation

doing or not doing any business in the Philippines? I think the
Corporation Law has so many cases along that line.
EXAMPLE: A Filipino businessman wanted to buy machines where
there is only one manufacturer and supplier which is a corporation
in Europe. This corporation has no office in the Philippines. The
Filipino businessman contracted with the foreign corporation. He
ordered machineries. The foreign corporation sent its people to
deliver the machineries. They stayed in the Philippines gor a while
to check the machines and to teach the Filipinos how to run it.
So there was no diligent inquiry. You should have gone to the SEC
and look at the records kung saan lumipat. Also with the address of
the officers like the President, you can go to his place and serve the
summons to him. So there was improper service of summons by
publication. Another case was
REBULIDO vs. CA 170 SCRA 800
Q: Now, can that corporation be used in the Philippine courts?

FACTS: A corporation committed a wrong and then
pagdemanda, dissolved na. When the action was filed, the
corporation was already dissolved wala ng juridical
personality.
A: NO, because that foreign corporation is not doing business in

the Philippines. Section 12 does not refer to a foreign corporation
with a single isolated, casual transaction. In the cases of
ISSUE #1: Can you still sue a dissolved corporation?
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO GR L-7154

October 23, 1954
HELD: YES. Otherwise, if we will say that a corporation which

is already dissolved can no longer be sued, it is very easy for a
corporation to avoid liability by simply dissolving itself after it
commits a wrong.
HELD: Doing business is construed to mean such continuity

of conduct and intention to establish a continuous business.
An isolated transaction, or transactions which are occasional,
incidental or casual and which do not evince intent to conduct
continuous business do not constitute doing business in the
Philippines.
And secondly, under the Corporation Law, even if you are

already dissolved, there is still a period for winding up where
you can collect. So, it is still functioning. And to say that it is
already dissolved or that it is no longer functioning is not also
true.
In order that a foreign corporation may be regarded as doing

business in the Philippines, there must be continuity of
conduct and intention to establish a continuous business,
such as the appointment of a local agent, and not one of a
temporary character.
ISSUE #2: If that is so, to whom will you now serve the
summons?
HELD: You serve it on the last set of officers. The same people
mentioned there must be a last President or a last
Corporate Secretary, etc. They are the people who whom
summons should be served.
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.

November 30, 1962
HELD: Where a single act or transaction of a foreign
corporation is not merely incidental or casual, but is of such
character as distinctly to indicate a purpose on the part of the
corporation to do other business in the Philippines, and to
make the Philippines a base of operations for the conduct of a
part of the corporations ordinary business, the corporation
may be said to be doing business in the Philippines.
When a corporation was placed under a Voting Trust

Agreement (VTA), the summons should be served on the
trustee. The President has no more personality that is an
exception to Section 11. So, when a corporation is placed
under VTA, the summons should be served on the person in
whose favor the VTA was executed because the officers of the
corporation have no more personality to manage the affairs of
the corporation.
So, under the rules, a foreign corporation not doing business in the
Philippines cannot be sued. If it enters into a contract with a
Filipino business man, it is not actually doing business. Isa lang eh!
So, technically, that foreign corporation cannot be sued in the
Philippines. Your remedy is to go to Europe and sue that
corporation there. In the case of
FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES

Finally, going back to foreign private juridical entity, take note that
under the law, the foreign private juridical entity is one doing
209

LINGER AND FISCHER vs. IAC 125 SCRA 522
B.
Minors and incompetents (Section 10) .... in case of

minors: by serving upon the minor regardless of age, and
upon his legal guardian or also upon either of his
parents. .... in case of incompetents - by serving on him
personally and upon his legal guardian, but not upon his
parents, unless they are his legal guardians.... In any
event, if the minor or incompetent has no legal guardian,
the plaintiff must obtain the appointment of a guardian
ad litem for him.
C.
Prisoner (Section 9) .... Serve on officer having

management of the jail or prison (warden).
D.
Domestic private juridical entity (Section 11) ..... to the

president, managing partner,, general manager,
corporate secretary, treasurer, or in house counsel. Note
that service upon a person other than those mentioned
is invalid and does not bind the corporation. the
enumeration is exclusive.
E.
Defendant is a foreign private juridical entity (Section 12)

.... Serve on the resident agent; or if none, on the
government official designted by law; or any officer or
agent of the corporation within the Philippines.
F.
Public corporation (Section 13) .... In case defendant is

the Republic of the Philippines by serving upon the
Solicitor General; In case of province, city or municipality
or like corporations, by serving on its executive head or
on such other officer or officers as the law or the court
may direct.
FACTS: A Philippine corporation entered into a contract with a

foreign corporation and then their agreement says the foreign
corporation agrees to be sued in the Philippines. So
practically, puwede. And the problem now is, to whom will
you serve the summons?
When a foreign corporation not doing business in he
Philippines agrees to be sued in the Philippines, how do you
serve summons? Is Section 12 applicable?
HELD: NO, Section 12 is not applicable because in Section 12,
the premise is, the foreign private corporation is doing
business in the Philippines. So Section 12 does not apply. So,
how shall we serve the summons?
In the first place, the foreign corporation, which cannot be
sued, agrees to be sued. Their agreement is similar to venue
where we can agree on the venue of the case. Now, since it is
not doing business, it is more accurate to apply the rules on
Section 15 on extraterritorial service of summons on a
non-resident defendant who is not physically here.
So, summons should be served not in accordance with Section 12
but in accordance with Section 15 on extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations.
When the defendant is the Republic of the
Philippines, service may be effected on the
Solicitor General; in case of a province, city or
municipality, or like public corporations,
service may be effected on its executive
head, or on such other officer or officers as
the law or the court may direct. (10a)
Sec. 18. Proof of service. The proof of service

of a summons shall be made in writing by the
server and shall set forth the manner, place,
and date of service; shall specify any papers
which have been served with the process and
the name of the person who received the
same; and shall be sworn to when made by a
person other than a sheriff or his deputy. (20)
An example of a public corporation is the Republic of the

Philippines. As a rule, they cannot be sued. But in cases where it
can be sued, summons may be effected on the Solicitor General
being the representative of the Republic.
This is called a SHERIFFS RETURN where the sheriff will state the
manner (personal or substituted, publication); place and date; to
whom served. Then you specify that you serve also the complaint.
Name of person who received the same.
Kung provinces, cities or municipalities, like the City of Davao,

service may be effected on the executive heads such as the
provincial governor, municipal or city mayor.
Q: Must the return be sworn to?

A: NO NEED, except when made by a person other than a sheriff or
his deputy. Remember that summons can be served by other
person authorized by the court to do so.
Summons may also be effected on such other officer or officers as

the law or the court may direct. So the court may order that the
summons be served on the city legal officer. Here, there is still a
valid service of summons.
Sec. 19. Proof of service by publication. If the

service has been made by publication, service
may be proved by the affidavit of the printer,
his foreman or principal clerk, or of the
editor, business or advertising manager, to
which affidavit a copy of the publication shall
be attached, and by an affidavit showing the
deposit of a copy of the summons and order
for publication in the post office, postage
Summary of Service of Summons on Different Entities

A.
Entity without juridical personality (Sec. 8) .... upon any

or all the defendants being sued under common name;
or person in charge of the office.
210

prepaid, directed to the defendant by

registered mail to his last known address.
(21)
the SC in the leading case of LA NAVAL DRUG CORPORATION vs. CA,

236 SCRA 28, which we will discuss more in detail when we reach
Rule 16 on Motion to Dismiss.
VOLUNTARY AND SPECIAL APPEARANCE
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
shall not be deemed a voluntary appearance.
(23a)
The first mode of acquiring jurisdiction over the person of the
defendant is service of summons. However, even when there is no
service of summons, or if there is improper service of summons, if
the defendant files an answer, then in effect, he is submitting
himself to the jurisdiction of the court and the court acquires
jurisdiction over his person by voluntary appearance.
Voluntary appearance is not necessarily an answer. Like a motion
for an extension of time to file an answer, or a motion for bill of
particulars that is indicative of his submission to the jurisdiction
of the court.
That is why we said, lack of jurisdiction over the person of the
defendant because of absence of service of summons or improper
service of summons, can be waived by voluntary appearance. That
is the second mode.
Any form of appearance in court, by the defendant, by his agent
authorized to do so, or by attorney, is equivalent to service of
summons, except where such appearance is precisely to object to
the jurisdiction of the court over the person of the defendant.
Now, of course, when a defendant files a motion to dismiss on the
ground that the court has not acquired any jurisdiction over his
person, that is not a voluntary appearance. That is a SPECIAL
APPEARANCE precisely to question the jurisdiction of the court
over his person.
A special appearance is not indicative of the intention to submit to
the jurisdiction of the court. Otherwise, it becomes absurd if I will
file a motion to dismiss questioning the jurisdiction of the court
over my person and then the court will say, Well, by filing the
motion to dismiss, you are also voluntarily submitting to the
jurisdiction of the court. Definitely, that is not the appearance
contemplated by Section 20.
Now, the second sentence, 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. What is
the meaning of that? Well, that principle is taken from the ruling of
211

Rule 15
Q: What are the requisites of a valid motion.
MOTIONS
A: They are found from Section 2 to Section 6:

Sec. 2. Motions must be in writing. All motions
shall be in writing except those made in open
court or in the course of a hearing or trial.
(2a)
What is a motion? Define a motion.

SECTION 1. Motion defined. A motion is an
application for relief other than by a
pleading. (1a)
As a rule, all motions must be in writing, except those made in

open court or in the course of a hearing or trial because for
example, during the trial, pagtingin mo sa relo, quarter to twelve
na. So you can move orally for continuance. And the judge will not
require you to have that typed pa. There is no more time to do
that. Anyway, it is officially recorded.
Kinds of Motions
1)
Motion Ex Parte is made without the presence or a

notification to the other party because the question
generally presented is not debatable, like a Motion for
Extension of Time to File Pleadings;
2)
Motion of Course is where a movant is entitled to the relief

or remedy sought as a matter of discretion on the part of
the court;
3)
Litigated Motion is one made with notice to the adverse

party to give an opportunity to oppose, like a Motion to
Dismiss);
4)
Sec. 3. Contents. A motion shall state the

relief sought to be obtained and the grounds
upon which it is based, and if required by
these Rules or necessary to prove facts
alleged therein, shall be accompanied by
supporting affidavits and other papers. (3a)
Contents of a Motion:
Special Motion is a one addressed to the discretion of the

court.
1)
the relief sought to be obtained;
General rule: A motion cannot pray for judgment.
2)
the ground upon which it is based; and
In a motion, the party is asking the court for a favor other than
what is contained in the pleading. Usually, the main relief is prayed
for in the pleading, like Judgment be rendered in favor of the
plaintiff, or, The complaint be dismissed. That is what you pray
in your complaint or in your answer.
3)
if required by the Rules or necessary to prove facts

alleged therein, shall be accompanied by supporting
affidavit and other papers.
So a motion shall state the relief sought to be obtained and the

grounds upon which it is based. For example, you move to
postpone the trial next week because you client is still abroad. So
you cite the ground/s upon which it is based.
A pleading however is directly related to the cause of action or the

defense. But a motion prays for something else. In a motion, you
are asking for another relief other than the main cause of action or
the main defense. Example is a motion to postpone trial or a
motion for extension of time to file answer. You do not do that by a
complaint but by way of a motion because you are praying for a
relief other than by a pleading.
Q: Is it necessary that a motion be accompanied by supporting

affidavits and other papers?
A: No, unless required by the Rules or necessary to prove facts
alleged therein.
Pleadings are limited to those enumerated in Rule 6 such as

complaint, answer, cross-claim, counterclaim, etc. But if you look
at a motion, it looks like a pleading. In form, it looks exactly like a
pleading but under the law, it is not a pleading.
Q: Give an example of a motion where supporting affidavits are

required by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake
of excusable negligence. Under Rule 37, Section 2, in order for a
motion for new trial on that ground to be valid, there must Be
Affidavit Of Merits. If there is no affidavit of merits, the motion will
be denied.
However, there are three (3) well known EXCEPTIONS to this.

Meaning you are praying, by way of a motion, for a relief which
normally should be prayed for in a pleading such as a motion is
praying for a judgment already. The exceptions are:
1.)
2.)
3.)
And if necessary to prove facts alleged therein, then, the motion

must be accompanied by affidavit and other supporting papers.
Example is when you are moving for the postponement of the trial
because your client is sick, the best supporting paper would be a
medical certificate for that matter.
Motion for Judgment to the Demurrer to Evidence

(Rule 33);
Motion for Judgment on the Pleadings (Rule 34);
and
Motion for Summary Judgment (Rule 35).
212

However, if it is not required by the Rules, or the facts are already

stated on record, there is no need of supporting affidavits or
documents. Example is when you move to declare the adverse
party in default. There is no need to support your motion with
affidavits because anyway the court can look at the records,
particularly the sheriffs return, to check when was the defendant
was served with summons.
And the law says, you serve the motion in such a manner as to
ensure its receipt by the other party at least three (3) days before
the date of hearing. In other words, you have to calculate that he
will receive it at least 3 days.
One good example of this requirement is one which is mentioned
in Rule 13, Section 11, that personal service is preferred to service
by registered mail because if it is personal service, it is assured that
the adverse party received the motion 3 days before. But if it is
service by mail, we will not know, unless you mail it very much
earlier because let us say, hearing on the motion will be on Friday,
and then you will mail the motion on Monday, or 5 days before, it
is possible that the motion will reach the opponent on Sunday or
two days later.
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.
Every written motion required to be heard
and the notice of the hearing thereof shall be
served in such a manner as to ensure its
receipt by the other party at least three (3)
days before the date of hearing, unless the
court for good cause sets the hearing on
shorter notice. (4a)
That is the reason why personal service is preferred because if

there is no explanation why you resorted to by mail rather than
personal service, the motion is deemed not filed.
Q: What is the effect if a party files a motion serving upon the
adverse party the motion in less than three days?
A: The court may refuse to take action on a motion which does not
comply with the rule requiring a three-day notice to the adverse
party, unless the court for good cause sets the hearing on shorter
notice. Usually these are urgent motions such as moving for
postponement because your witness got sick one day or hours
before the trial.
Requisites of a Motion (not made in open court or in the course of

hearing or trial) under Sections 3 and 4:
1.
it must be in writing (Sec. 3);
2.
Hearing of Motion set by the applicant (Sec. 4);
3.
Motion and notice of hearing must be served at least 3

days before the date of hearing. This is called the Three
Day Notice Rule (Sec. 4);
Sec. 5. Notice of hearing. The notice of

hearing shall be addressed to all parties
concerned, and shall specify the time and
date of the hearing which must not be later
than ten (10) days after the filing of the
motion. (5a)
Exceptions to the 3 day notice rule:

1.
2.
3.
4.
ex parte motions;
urgent motions;
Motions agreed upon by the parties to be heard on
shorter notice or jointly submitted by the parties; and
Motions for summary judgment which must be served at
least 10 days before its hearing.
Notice of Hearing shall be addressed to all parties concerned. Date

of hearing must not be later than 10 days from the filing of the
motion (Section 5);
Section 4, says that you must furnish the adverse party a copy of
your motion at least three (3) days before date of hearing. So, you
do not furnish him one day before the date of the hearing. The
reason there is to prevent surprise upon the adverse party and to
enable the latter to study the motion and file his opposition
(Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot
be filed ex-parte, meaning, without notice of hearing and without
furnishing a copy to the opponent.
Q: Now, what happens if a motion does not contain a notice of

hearing?
A: A motion that does not contain a notice of hearing is but a mere
scrap of paper; it presents no question which merits the attention
and consideration of the Court. It is not even a motion for it does
not comply with the rules. A motion without notice of hearing is
nothing but a piece of paper filed in court, which should be
disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651
[1991])
However, a motion need not be set for hearing if it is not a litigated

motion. Meaning, these are motions which the court may act
upon without prejudicing the rights of the adverse party such as a
motion for extension of time to file answer or a motion to set case
for pre-trial. So with this kind of motion, the court can immediately
grant your motion.
213

Q: To whom should the notice of hearing be addressed?
has actually had the opportunity to be heard, and has, indeed,

been heard through pleadings filed in opposition to the motion, the
purpose behind the rule is deemed duly served. The requirements
of due process are substantially complied with. (Jehan Shipping
Corporation vs. NFA, GR No. 159750, Dec. 14, 2005)
A: It is addressed to all parties concerned. So, normally ganito iyan:

Atty. Johnny Bravo
Counsel for plaintiff
Greetings! Please take notice that the undersigned is
submitting
the
foregoing
motion
for
the
reconsideration of the Honorable Court on Friday,
November 28, 1997 at 8:30 in the morning.
The Court has consistently held that a motion which does not meet
the requirements of Sections 4 and 5 on hearing and notice of
hearing, is a mere scrap 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 (Vette Industrial Sales Co.,
Inc. vs. Cheng GR 170232-170301, December 5, 2006).
(Signed) Atty. Hong Hunks

Counsel for Defendant
Now, some lawyers, when they prepare a notice of hearing will
state: TO THE CLERK OF COURT, Please set the foregoing for the
consideration of the court Now, the law says, the notice of
hearing should be addressed to the parties and not to the clerk of
court. So, the common practice of addressing the notice of hearing
to the clerk of court is technically wrong.
Sec. 6. Proof of service necessary. No written

motion set for hearing shall be acted upon by
the court without proof of service thereof.
(6a)
The SC has already commented on that several times. One of them

was the case of
Proof of service of the motion is required No written motion set

for hearing shall be acted upon by the court without proof of service
hereof. This is related to Rule 13. As a general rule, you cannot file
anything in court without furnishing a copy to your opponent. A
motion cannot be filed ex-parte.
PRADO vs. VERIDIANO II 204 SCRA 654 [1991]

HELD: Sections 5, Rule 15 of the Rules of Court which
explicitly provide that the notice shall be served by the
applicant to all parties concerned and shall state the time and
place for the hearing of the motion. A notice of hearing
addressed to the Clerk of Court and not to the parties is no
notice at all.
The only exceptions here are motions which can be filed ex-parte
because they are not controversial. Normally, there are motions
which can be filed without proof of service, which generally the
court will grant anyway. Another example is Rule 23, Section 21 on
indigent or pauper litigants a party may be authorized to litigate
his action, claim or defense as an indigent upon ex-parte motion
together with the complaint and a hearing. Therefore, there is no
need to furnish copy of the motion to the other party.
So it is very technical.
Now, take note that the new rule added the phrase that you must
specify the time and the date of the hearing which must not be
later than ten (10) days after the filing of the motion. That is not
found in the prior rule.
But those are the only exceptions. So, as a rule, every motion must
be served to the opposite party.
Before, some lawyers are mischievous. When they received the

complaint, instead of filing an answer, they will file a motion to
dismiss just to delay. And the motion to dismiss is denied. But at
least the period to answer is stretched. And to make it worse, they
will file it in November and they will set it for hearing in December.
One month from now.
Outline of Sections 2 to 6
Q: What are the requisites of a valid motion?
A: The REQUISITES OF A VALID MOTION are the following:
Now, you cannot do that. Pag-file mo ng motion, maximum ten (10)

days only. You cannot say, I will set if for hearing 2 months from
now. It is now very clear that it must not be later than 10 days
after the filing of the motion. And see to it that the party receives it
3 days before the hearing because of Section 4. The minimum is 3
days. So that is a new requirement found in 1997 Rules.
The general rule is that the three-day notice requirement in motions
under Sections 4 and 5 of Rule 15 is mandatory. It is an integral
component of procedural due process. But when the adverse party
214
1)
It must be in writing except those made in open

court or in the course of hearing or trial;
2)
It shall state the relief sought to be obtained

and the ground upon which it is based;
3)
It must be accompanied by supporting affidavits

and other papers, if required by these Rules or
necessary to prove facts alleged therein.
However, if the facts are already stated on
record, the court can check the records;

4)
There must be a notice of the hearing attached

to the motion and the adverse party must
receive the motion at least three (3) days
before the date of hearing, unless the court for
good cause sets the hearing on shorter notice;
5)
There must be notice of hearing addressed to

all parties concerned, and shall specify the time
and date of the hearing which must not be later
than ten (10) days after the filing of the motion;
and
6)
There must be proof of service of the motion on

the adverse party.
The word omnibus means all embracing or all encompassing.

Q: Define omnibus motion.
A: An OMNIBUS MOTION is one attacking a pleading, order,
judgment, or a proceeding which shall include all objections then
available and objections not so included shall not deemed waived.
(Section 8; Ins. Co. of North America vs. Delgado Brokerage, L22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding.
Where a party is not allowed to file a motion to based on one
ground, if denied, second motion to dismiss based on the second
ground, denied, third motion to dismiss. Meaning, ini-installment
mo. That is not allowed. If you have two or more grounds, you file
only one motion to dismiss invoking those grounds because the
rule is, any ground not so invoked is deemed waived.
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)
Note:
EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial
under Section 5 of Rule 37 prohibits the filing of a second motion
for new trial based on grounds available to the movant when he
filed his first motion. Well, if the grounds came later, that is
different.
Any motion that does not comply with Sections 4, 5 and

6 is a mere scrap of paper.
It does not interrupt the reglementary period for the
filing of the requisite pleading.
So, the principle there is, if you have two or more grounds you
should only file one motion where you invoke all your grounds.
The well-settled rule is that a motion which fails to comply with

such requirements is a useless piece of paper (Neri vs. de la Pena
457 SCRA 438). It is pro forma presenting no question which the
court could decide (Boiser vs. Aguirre, Jr. 458 SCRA 430). 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 vs.
CA 388 SCRA 72). 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 vs. Flojo 251 SCRA 87).
Now, obviously there is an EXCEPTION because the opening clause

of section 8 is Subject to the provision of Section 1 of Rule 9.
Rule 9, Section 1. Defenses and objections not
pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in
the answer are deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgment or by
statute of limitations, the court shall dismiss
the claim. (2a)
Sec. 7. Motion day. Except for motions

requiring immediate action, all motions shall
be scheduled for hearing on Friday
afternoons, or if Friday is a non-working day,
in the afternoon of the next working day. (7a)
Motion hearings are scheduled on Friday afternoons except those
motion which require urgent action. So if today is Friday and its a
holiday, sa Monday pa ang hearing. But again, some judges do not
follow this.
Under Rule 9, There are four (4) exceptions. Meaning, they are not
deemed waive even if you do not raise them in a motion to dismiss,
which can be even motu propio proceeded by the court.
Note that there is no motion day in the Supreme Court.
Q: What are the grounds not deemed waived even if not raised in
a motion to dismiss or answer. (Exceptions to the omnibus
motion rule)?
OMNIBUS MOTION RULE
A: The following:
Sec. 8. Omnibus motion. Subject to the

provisions of section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or
proceeding shall include all objections then
available, and all objections not so included
shall be deemed waived. (8a)
1)
2)
3)
4)
215
Lack of jurisdiction over the subject matter;

Litis pendentia;
Res adjudicata; and
Prescription.

Sec. 9. Motion for leave. A motion for leave to

file a pleading or motion shall be
accompanied by the pleading or motion
sought to be admitted. (n)
EXAMPLE: Under the OLD rules, if you want to file an amended
complaint, there are two (2) Options under the old rules. The first
option is to file a motion for leave to file amended complaint. And
when it is granted, that is the time for to you file your amended
complaint. The second option is you file your amended complaint
together with the motion to admitted it.
The same thing iyong sa intervention under the OLD rules. In a
motion to intervene, Motion to intervene. Granted, I will file my
pleading in intervention. The same thing for certain types of
motion like motion for leave to file third-party complaint: Motion
for leave. Granted, I will file my third-party complaint. That is
under the previous rule.
NOW, hindi na puwede yan. Under the PRESENT RULE, when you
file a motion, the pleading to be admitted must already be included
in your motion. Pag-file mo nng motion, kasama na iyong pleading.
The pleading sought to be amended must already be included in
the motion. One-time filing ba!!
Sec. 10. Form. The Rules applicable to
pleadings shall apply to written motions so
far as concerns caption, designation,
signature, and other matters of form. (9a)
The rule on pleadings also applies to written motion as far as
caption, designation, signature and other matters of court. So in
appearance there is difference between the appearance of a
pleading and the appearance of a motion. But definitely, a motion
is not a pleading although it looks like a pleading.
216

Rule 16
However the admission extends only to material and relevant

allegations.
MOTION TO DISMISS
If for instance 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.
Even when the allegations in the complaint are now clear enough
to enable the defendant to file his responsive pleading because the
adverse party has already submitted a bill of particulars, the
defendant need not 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.
Omnibus motion
When a motion to dismiss is filed, all grounds available at the time
the motion is filed must be invoked in the motion. This is required
under the omnibus motion rule. Grounds not so invoked are
deemed waived. The grounds not waived however, are lack of
jurisdiction over the subject matter, litis pendencia, res judicata
and prescription (Sec. 8 Rule 15; Sec. 1 Rule 9)
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 SC is not to encourage the filing of such motion but to instead
file an answer to the complaint. Thus, effective August 26, 2004,
within one day from receipt of the complaint, summons 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, July 13, 2004).
The above rule applies only when a motion to dismiss is filed.

Where no motion to dismiss is filed, the grounds for a motion to
dismiss may be availed of as affirmative defenses in the answer
(Sec. 6 Rule 16). No defense is waived 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 waiver of defenses.
Motion to dismiss is the counterpart of motion to quash (Rule 117)

in criminal procedure. In criminal procedure, before the
arraignment or before entering a plea the accused may instead file
what is known as motion to quash. The proceedings are quashed
on the ground 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
courts 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. vs. David 468
SCRA 63).
(1) the court has no jurisdiction over the subject matter of

the case or over the person of the accused;
(2) the person who filed it has no authority to do so;
(3) the complaint or information charges more than one
offense;
(4) because of double jeopardy; or
(5) the criminal liability has already been extinguished.
A motion to dismiss is not a responsive pleading. It is not a
responsive pleading at all.
Hypothetical admissions of a motion to dismiss
A motion to dismiss hypothetically admits the truth of the factual
allegations of the complaint (Peltan Development Inc., vs. CA 270
SCRA 82; Cuarto vs. De Luna 22 SCRA 459). The 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, inference from facts not stated,
matters of evidence or irrelevant matters (De Dios vs. Bristol
Laboratories, 55 SCRA 349) 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 vs. Julio 10 SCRA 4000).
Section 1. Grounds. Within the time for but

before filing the answer to the complaint or
pleading asserting a claim, a motion to
dismiss may be made on any of the following
grounds:
xxxxx
General rule: A court may not motu proprio dismiss a case unless
a motion to that effect is filed by a party thereto.
Exceptions:
1)
A motion to dismiss generally partakes the nature of a demurrer. It

hypothetically admits the allegations stated in the complaint.
2)
217
Those cases where the court may dismiss a case motu

proprio (Sec. 1, R 9);
Sec. 3 R 17 (Failure to prosecute); and

3)
Rule on Summary Procedure (Sec. 4, 1991 Revised Rules

on Summary Procedure.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER

THE PERSON OF THE DEFENDING PARTY
Types of Dismissal of Action:

1)
Upon Motion to Dismiss before Answer under Rule 16;
2)
Upon Motion to Dismiss under Rule 17;

a.
b.
c.
Q: When will that happen?

A: When there is absence of summons or improper service of
summons.
Now based on decided cases, it would seem that this is one of the
weakest grounds for a motion to dismiss the court has not
acquired jurisdiction over the person for there are many
exceptions. There are many waivers. Because of the rule of waiver
the court may acquire jurisdiction over your person in some other
capacity.
upon notice by plaintiff;

upon motion by plaintiff; or
due to fault of plaintiff.
3)
Motion to dismiss called a demurrer to evidence after

plaintiff has completed the presentation of his evidence
under Rule 33; and
4)
Dismissal of an appeal.
EXAMPLE: You are improperly served with summons but you file a
motion for bill of particulars or you file a motion for extension of
time to file for an answer then the court acquires jurisdiction over
your person and you cannot any more file a motion to dismiss. The
principle is that the moment you file a motion for bill of particulars
or you file a motion for extension of time, in effect you have
already submitted to the jurisdiction of the court. If there was any
defect in the service of summons, it was already cured.
Q: When do you file a motion to dismiss?

A: Within the time for but before filing the answer. So, within 15
days instead of filing an answer the law allows the defendant to file
instead a motion to dismiss. The principle is within 15 days from
receipt of the summons and the complaint, the defendant should
file an answer or in lieu of an answer he may instead file a motion
to dismiss based on the grounds enumerated in section 1.
EXAMPLE: Now, suppose the summons was served on a nine-year

old boy who is presumed to be responsible. When his father
arrived, the boy told his father that somebody came in and left this.
So in other words the father actually got the summons. Now,
suppose the father will file a motion to dismiss on the ground that
the court never acquired jurisdiction over the person because the
summons was improperly serve. Do you think it will prosper?
A motion to dismiss that is filed after the answer has been filed, is
considered filed out of time and the defending party is stopped
from filing the motion to dismiss (Philville vs. Javier 477 SCRA 533).
This is only a general rule.
Note however, that 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:
(a)
(b)
(c)
(d)
There are cases in the SC which says even if the summons was not
properly served, if actually it came to the attention of the
defendant, the defect is cured. Because if you say I will not answer
for the summons is improper that is more of a technicality. You are
being technical. Actually you have received the summons. In other
words, there are cases along that line. That is why this ground may
no longer be available to you because of those instances.
Lack of jurisdiction over the subject matter;

Litis pendencia;
Res judicata; or
Prescription (Sec. 1 Rule 9).
Under said rule, when any of the above grounds appears from the
pleadings or from the evidence on record, the court shall dismiss
the claim. The authority given to the court is, from the tenor of the
rule, not only mandatory but also subject to a motu proprio
dismissal. Since the ground for dismissal may appear from the
evidence, it is obvious that the dismissal may be made during the
trial and this means, even after the answer has been filed.
LINGER AND FISHER vs. IAC 125 SCRA 522

FACTS: The sheriff served the summons improperly on the
defendant. And the defendant filed a motion to dismiss on the
ground that the court has no jurisdiction over his person.
HELD: Defendant assumed that the sheriff made a mistake.

Why should we dismiss the complaint? It is not the fault of the
plaintiff. If the sheriff does not know how to do it, the fault
lies on the sheriff and the sheriff is an employee of the court,
not an agent of the plaintiff. Why should the court blame the
plaintiff? If that is what happens we will not dismiss the case.
We will instead issue an alias summons and direct the sheriff
to solve it properly.
Now, a motion to dismiss is available not only for the purpose of

dismissing the complaint but also for dismissing a counterclaim, a
cross-claim, a third party complaint because the laws says before
filing the answer to the complaint or pleading asserting a claim.
A claim can be ascertained not only in a compliant but also in
other pleading such as counterclaims, etc.
218

With all these decided cases, it would seem that the objection of
no jurisdiction over the person of the defending party is getting
weaker and weaker because of so many exceptions such as:
matter. Or, an action for annulment of marriage is filed in the MTC.

Now, I will file a motion to dismiss because the court has no
jurisdiction over the subject matter.
(1) waiver;
(2) voluntary appearance;
(3) improper service but the defendant came to know about
it so you cannot rely on the technicality and
(4) then you have the case of Linger.
So, we are familiar already with this. Now, let go to important

principles on this ground.
FIRST PRINCIPLE: Jurisdiction over the subject matter is determined
by the allegations in the complaint .
Q: How do we determine whether a court has a jurisdiction or not
over a particular case?
FAR CORPORATION vs. FRANCISCO 146 SCRA 197
A: By reading the complaint, we will know whether the subject

matter is within the jurisdiction of the court or not. So the principle
to remember is, jurisdiction over the subject matter of the case is
determined by the allegations in the complaint not by the
allegation of the defendant in his motion to dismiss or answer.
HELD: This case reiterated the ruling in LINGER where the SC

said again, if the sheriff did not know how to serve the
summons, why should the plaintiffs complaint be dismissed
when it is not his fault. The correct procedure is for the court
to issue another summons and direct that the sheriff should
serve it properly.
EXAMPLE: A filed a complaint against B before the RTC of Davao

City to recover an unpaid loan of P350,000. By going over the
complaint, does the RTC have jurisdiction? YES. But here comes the
defendant filing a motion to dismiss under Rule 16 alleging that it
is not P350,000 but only P250,000. Therefore, the court has no
jurisdiction over the subject matter. So the court is confronted
with this situation.
On the other hand, there was a conflict before in jurisprudence on

this question:
Q: Suppose I will file a motion to dismiss. Assuming that there is a
ground of lack of jurisdiction over my person and venue is
improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible?
LA NAVAL DRUG CORPORATION vs. CA 236 SCRA 78
Q: What will the court do? Should the court deny the motion to
dismiss?
HELD: When you file a motion to dismiss citing lack of

Jurisdiction over your person together with other grounds,
there is no waiver on the defect or lack of jurisdiction. So, you
can file a motion to dismiss on that ground together with
other grounds. There is no more waiver. 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.
A: YES because jurisdiction over the subject matter is determined by

the allegations in the complaint. They are not determined by the
allegations of the defendant in his motion to dismiss.
SECOND PRINCIPLE: When a defendant files a motion to dismiss on
the ground that the court has no jurisdiction over the subject
matter, the defendant hypothetically admits all the allegations in
the complaint to be true. The defendant in the meantime, is not
allowed to present evidence that the court has no jurisdiction.
Everything must be decided on the face of the complaint only.
Obviously the ruling in NAVAL is incorporated in the Rules of Court.

Lets go back to Rule 14 Section 20:
But suppose it is really P250,000 only and in the course of the trial,
even plaintiffs own evidence shows that the loan is only P250,000.
If that is so, if that becomes apparent in the middle of the trial,
Vannie Kolotski will now move to dismiss on the ground that the
lack of jurisdiction has now become apparent. Anyway, you have
not waived that defect. You can raise that anytime. But at the start
of the case, whatever the complaint says, that is assumed to be
true for the moment, if the ground is lack of jurisdiction. So, what is
the principle there? Jurisdiction over the subject matter is
determined purely by the allegations in the complaint.
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
shall not be deemed a voluntary appearance.
(23a)
Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER
THE SUBJECT MATTER OF THE CLAIM.
THIRD PRINCIPLE: Jurisdiction over the subject matter, once

acquired by the court upon the filing of the complaint, the court
retains the jurisdiction over that case until that case is
terminated. Any subsequent development or any subsequent
amendment of the law will no longer deprive the court of its
jurisdiction.
That is one of the most important grounds for a motion to dismiss.

EXAMPLE: An action for unlawful detainer is field in the RTC and
your ground is, the court has no jurisdiction over the subject
219

A perfect EXAMPLE is what happened with the effectivity of the

law expanding the jurisdiction of the MTC under RA 7691. The
jurisdiction of the MTC under the old law is P20,000 lang eh. So, if
your claim is above P20,000, RTC na. And there were several cases
pending in court already being tried P 30,000, P 40,000 in the
RTC. Then in April 1994, the jurisdiction of the MTC was increased
to P100,000. What happens now to all those cases which were only
P21,000 or P20,000? Shall the RTC dismiss all of them or the RTC
will finish it? Jurisdiction over the subject matter once acquired
continues until the case is finished or terminated. That is the
principle to remember.
Q: Suppose there is already a decision by the trial court, can you

still raise the issue of lack of jurisdiction? Why?
A: YES. The decision is deemed void because all along the court has
no authority to try. So the trial is void. The judgment is void. As a
matter of fact it can be raised at any stage of the proceeding even
for the first time on appeal. That is the rule.
Now, that rule has somehow weakened or diluted by the ruling in
TIJAM vs. SIBONGHANOY 23 SCRA 29 [1968]
FACTS: The case of TIJAM was something really queer and
unique. From the start, the City Court of Cebu has no
jurisdiction. The defendant never filed a motion to dismiss.
And what is so surprising is that the court never noticed it.. So
the parties will go on trial. After trial, the court rendered
judgment in favor of the plaintiff. The defendant was not
satisfied. He appealed to the former CFI (now RTC) and on
appeal that issue on lack of jurisdiction was never raised. Talo
na naman iyong defendant.
The ONLY POSSIBLE EXCEPTION there is what the Supreme Court

says, if the new statute is intended to be curative in character to
cure the defect under the old law then the rule on adherence of
jurisdiction does not apply.
That was best exemplified by a situation years ago when there was
a controversy as to whether a claim for moral and exemplary
damages filed by an employee against the employer for oppressive
act of terminating him can be granted by the Labor Arbiter.
So all this process took about 10 years. Talo. So much water

has already passed under the bridge. Nagpalit ng abogado
iyong defendant and he traced the proceeding. Actually all
along, the inferior court has no jurisdiction and everything is
void from the very beginning. But take note, it took the
defendant through his lawyer 10 years or more to raise the
issue. Now, of course, if we will follow the rule, it can be
raised at any stage at any time even for the first time on
appeal on this ground that everything is void.
Definitely, reinstatement and backwages can be granted by the

Labor Arbiter. The jurisprudence at that time when it was still
unsettled was, the claim for moral damages should be settled in
the RTC, not by the Labor Arbiter. However, where these cases
were still pending in the RTC, mga damages, in the meantime the
law naman was changed. The Labor Arbiter now was given
jurisdiction to award damages.
So, what happen to the cases for damages now pending in the RTC?
Should they be transferred to the Labor Arbiter? It we follow the
rule that jurisdiction once acquired continuous, the answer is, the
RTC should continue trying the case for damages and the Labor
Arbiter continue to try the backwages and reinstatement. But that
is practically splitting the case into two parts.
HELD: NO, you cannot raise it anymore. Under the equitable

doctrine of estoppel by laches, you are already under estoppel
to raise that ground because the if you will follow the general
rule and we will declare null and void everything from the City
Court to the CA, everything a judicial work which lasted for
10 years will all be thrown in the waste basket. That is
practically compelling the plaintiff to undergo a second
calvary. Ulit na naman siya just to prove his case.
So obviously, the intention of the law granting the Labor Arbiter

the jurisdiction is to cure the error. So, what happened? All those
cases filed in the RTC were ordered transferred to the Labor Arbiter
as an exception to the rule on adherence to jurisdiction.
But the ruling in SIBONGHANOY is not intended to be the rule. It is

not intended to overrule the rule that lack of jurisdiction over the
subject matter can be raised at any stage of the proceeding. The
ruling in the SIBONGHANOY is only to be applied in exceptional
situations
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter

may be raised:
1)
2)
3)
4)
5)
In the answer;
In the course of the trial;
After the trial;
After the judgment; or even
For the first time on appeal.
Even the SC noted that courts were applying the SIBONGHANOY

ruling indiscriminately that it will take you one or two months to
raise lack of jurisdiction wala pa nag-unpisa ang trial then one or
two months after the case was filed, ah estoppel na! Practically,
that is saying that lack of jurisdiction cannot be raised anymore.
But the SC said NO, that is wrong. In the case of
All right, lets go to the basics:

Q: Can the issue of lack of jurisdiction over the subject matter be
raised in the middle of the trial?
A: YES, there is no waiver.
220

SEAFDEC AGRICULTURE DEPARTMENT vs. NRLC 206 SCRA 283

[1992]
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY

TO SUE;
HELD: A rule, that had been settled by unquestioned

acceptance and upheld in decisions so numerous to cite is
that the jurisdiction of a court over the subject matter of the
action is a matter of law and may not be conferred by consent
or agreement of the parties. The lack of jurisdiction of a court
may be raised at any stage of the proceedings, even on
appeal.
Q: Give an example when the plaintiff has no legal capacity to

sue.
This doctrine has been qualified by recent pronouncements

which stemmed principally from the ruling in the cited case of
SIBONGHANOY. It is to be regretted, however, that the
holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional
circumstances involved in SIBONGHANOY which justified the
departure from the accepted concept of non-waivability of
objection to jurisdiction has been ignored and, instead a
blanket doctrine had been repeatedly upheld that rendered
the supposed ruling in SIBONGHANOY not as the exception,
but rather the general rule, virtually overthrowing altogether
the time-honored principle that the issue of jurisdiction is not
lost by waiver or by estoppel. (Calimlim vs. Ramirez, G.R. No.
L-34362, 118 SCRA 399 [1982]).
According to the SC, when you say that the plaintiff lacks legal
capacity to sue, there are two (2) possible meanings. It means any
of the following:
A: A minor will file a case without being assisted by his parents or

guardian. Or, a person will file a case in behalf of a minor claiming
that he is a guardian when in fact he is not. He is not the parent of
the child. He is not also appointed by the court.
1)
when the plaintiff does not possess the necessary

qualifications to appear at the trial such as when the
plaintiff is not in the full exercise of his civil rights like
when he is a minor, or insane; and
2)
when the plaintiff does not have the character or

representation which he claims like he claims to be a
guardian when in reality he is not. (Lunsod vs. Ortega, 46
Phil. 664)
EXAMPLE: I will sue you as the guardian of a minor
guardian ad litem. But actually, you will challenge my
being a guardian. There is no court order according to
you. So, I might be of age but I have no legal capacity to
sue because I do not have the representation which I
claim I have.
So, this has already been clarified. The latest case was the 1995
case of
DE LEON vs. CA 245 SCRA 166
Q: (Bar question) Distinguish lack of legal capacity to sue from

lack of legal personality to sue.
HELD: In the past, the principle of estoppel has been used by

the courts to avoid a clear case of injustice. Its use as a
defense to a jurisdictional error is more of an exception rather
than the rule. The circumstances outlining estoppel must be
unequivocal and intentional, for it is an exception to standard
legal norms and is generally applied only in highly exceptional
and justifiable cases.
A: The lack of legal capacity to sue refers to disability of the

plaintiff while the lack of legal personality to sue is to the fact that
the plaintiff is not a real party in interest, in which case, the ground
for dismissal would be that the complaint states no cause of action
(Gonzales vs. Alegarbes, 99 Phil 213; Casimiro vs. Roque, 98 Phil.
880)
In other words, do not abuse the SIBONGHANOY ruling. That is very

exceptional case.
ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a disability of
the plaintiff, like he is a minor; or he is insane or incapacitated.
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID

Here, there is no compliance with Rule 4 the action is filed in the
place other than the proper venue under Rule 4.
In lack of legal personality to sue going back to Rule 3, when you

are appointed as agent or attorney-in-fact of somebody to manage
his property and to file suit in his behalf while you have the
authority to file cases, it does not mean to say that you should sue
in your own name because the real party in interest is the principal,
not the agent.
Q: Suppose you file a motion to dismiss on the ground of

improper venue, but your motion to dismiss is denied. What is
your remedy?
A: Your remedy is to resort to the special civil action of prohibition
under Rule 65. And you should resort to it immediately because if
you will file your answer and go to trial, in effect, you will be
waiving the objection. The objection must be pursued diligently.
That was the pronouncement in the case of Pangasinan
Transportation Co. v. Yatco (21 SCRA 658).
So if the agent files an action in his own name, rather than that of
the principal, what you are going to say is, you are not the real
party in interest. You are not challenging his age or disability but
you are challenging his being placed as plaintiff when actually he is
only the attorney-in-fact or agent. In effect, when you raise this
221

ground, actually that would fall more under paragraph [g] that
the pleading asserting the claim states no cause of action because
there is no cause of action in favor of the agent. The cause of action
is in the principal.
Do you know what he said? Itong forum- shopping, how it started?

Actually, it is a concept in Private International Law where you shop
for a forum where you look for a country where you will file a
case and then the court of that country will now reject it on the
ground for forum non conveniens. That is where it originates. You
are shopping for a forum.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING

BETWEEN THE SAME PARTIES FOR THE SAME CAUSE;
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA 252 SCRA 259,

January 24, 1996
Now, this is one of the most important grounds for a motion to

dismiss. This is popularly known as the ground of lis pendens. Now,
do not confuse this with the notice of lis pendens that we discussed
in Rule 13. That is the notice that you annotate on the title of the
property when you are filing a case for its recovery although the
meaning is the same because lis pendens is Latin for pending
litigation.
HELD: Forum-shopping originated as a concept in private

international law, where non-resident litigants are given the
option to choose the forum or place wherein to bring their
suit for various reasons or excuses, including to secure
procedural advantages, to annoy and harass the defendant, to
avoid overcrowded dockets, or to select a more friendly
venue. To combat these less than honorable excuses, the
principle of forum non conveniens was developed whereby a
court, in conflicts of law cases, may refuse impositions on its
jurisdiction where it is not the most convenient or available
forum and the parties are not precluded from seeking
remedies elsewhere.
So the essence is that there is a case filed against you and then
while it is pending, another case is filed against you based on the
same cause of action. So what will you do? I have to move to
dismiss one case. I will allege that there is already another action
pending between the same parties for the same cause. So in effect,
what you are saying is the plaintiff is guilty of splitting his cause of
action and this ground has also been mentioned in Rule 2, Section
4:
In the Philippines, forum shopping has acquired a

connotation encompassing not only a choice of venues, as it
was originally understood in conflicts of laws, but also to a
choice of remedies.
Rule 2, Sec. 4. Splitting a single cause of

action; effect of - If two or more suits are
instituted on the basis of the same cause of
action, the filing of one or a judgment upon
the merits in any one is available as a ground
for the dismissal of the others. (4a)
As to the first (CHOICE OF VENUES), the Rules of Court, for

example, allow a plaintiff to commence personal actions
"where the defendant or any of the defendants resides or
may be found, or where the plaintiff or any of the plaintiffs
resides, at the election of the plaintiff" (Rule 4, Sec. 2 [b]).
So the filing of one case is available as a ground for the dismissal of

the other. Now, such ground is stated under Rule 16 that there is
another action pending between the same parties for the same
cause. The other legal term for it aside from the ground of lis
pendens is the ground of litis pendentia. It means the same thing.
Thats why when you read some SC cases, the SC cites either one of
the two terms. There is another foreign term although it is less
used, the ground of action pendant.
That is forum- shopping. lba ang rule ng venue. Where will you file
personal action? where the plaintiff or any of the principal
plaintiff resides, or, where the defendant or any of the defendants
resides. So, mamili ka! If I am the lawyer kung saan pabor, doon
ako mag-file, and that is forum- shopping. But that is legitimate
forum- shopping because that is allowed by law.
LITIS PENDENTIA viz a viz FORUM-SHOPPING

As to remedies, aggrieved parties, for example, are given a choice
of pursuing civil liabilities independently of the criminal, arising
from the same set of facts. A passenger of a public utility vehicle
involved in a vehicular accident may sue on culpa contractual, culpa
aquiliana or culpa criminal each remedy being available
independently of the others although he cannot recover more
than once. (First Philippine International Bank vs. CA, supra.)
Now, you come analyze that when the other party files two cases
against you, at the same time what is the correct ground for
dismissal? Litis pendentia or forum-shopping? Is there a
relationship between forum- shopping and litis pendentia? When I
file two identical cases in two courts, am I not also forumshopping?
That is in effect forum- shopping. If I am the offended party, shall I

prosecute the civil aspect in the criminal action or shall I file an
independent civil action or reserve the right? Nasa iyo man iyan
ba! In effect, you shop for a forum. That is also forum- shopping.
But that is legitimate forum- shopping.
One of the most intelligent discussion on this topic was the case of
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259),
January 24, 1996, penned for the Third Division by Justice Artemio
Panganiban.
In either of these situations (choice of venue or choice of remedy),

the litigant actually shops for a forum of his action. This was the
222

original concept of the term forum shopping which is perfectly a

valid act.
b)
c)
rights or causes of action and

reliefs sought.
Forum-shopping does not require a literal identity of parties.

It is sufficient that there is identity of interests represented.
Eventually, however, instead of actually making a choice of the

forum of their actions, litigants, through the encouragement of
their lawyers, file their actions in all available courts, or invoke all
relevant remedies simultaneously. This practice had not only
resulted in conflicting, adjudications among different courts and
consequent confusion inimical to an orderly administration of
justice. It had created extreme inconvenience to some of the
parties to the action.
When there is already adjudication on the merits in one case to be

more accurate, RES ADJUDICATA should be alleged, and not forum
shopping as a defense because the decision in the previous case
had already become final and executory. So, when there is already
a judgment in the previous case to be exact that should be res
judicata. But when there is no decision yet, that is litis pendentia
and forum shopping.
Thus, forum shopping had acquired a different concept which is

unethical professional legal practice. And this necessitated or had
given rise to the formulation of rules and canons discouraging or
altogether prohibiting the practice.
ELEMENTS OF LITIS PENDENTIA
Now, this is one of the grounds of a motion to dismiss which is the

subject matter already of so many cases and so many questions in
the bar. One of the fundamental questions which is asked here is:
What are the requisites for litis pendencia as a ground for a motion
to dismiss. Actually, there is no wrong if I will file as many cases as I
want against you provided the causes of action are different.
Sometimes, it is difficult to determine where there is litis pendentia
or none. It is possible for 2 cases to arise between the same parties
or the 2 cases are interrelated. But actually they arose from
different causes of action. So you will get confused.
What therefore originally started both in conflicts of laws and in

our domestic law as a legitimate device for solving problems has
been abused and misused to assure scheming litigants of dubious
reliefs.
Consequently, where a litigant or one representing the same
interest or person sues the same party against whom another
action or actions for the alleged violation of the same right and the
enforcement of the same relief is/are still pending, the defense of
litis pendentia in one case is a bar to the others; and, a final
judgment in one would constitute res judicata and thus would
cause the dismissal of the rest. In either case, forum shopping
could be cited by the other party as a ground to ask for summary
dismissal of the two or more complaints or petitions, and for the
imposition of the other sanctions, which are direct contempt of
court, criminal prosecution, and disciplinary action against the
erring lawyer. (First Philippine International Bank vs. CA, supra.)
Sometimes when you read cases decided by the SC on litis

pendentia, you will have a hard time determining whether the 2
cases are only related or they are really identical. If they are only
related, there is no basis for dismissal.
Q: What are the requisites of litis pendentia as a ground for a
motion to dismiss?
So, what is the difference between forum shopping and litis

pendentia? Actually, there is no difference. Mas maganda pa nga
i-dalawa mo litis pendentia and forum shopping. Ano ang effect?
Sabihin mo, litis pendentia one will be dismissed, the other will
remain alive. In forum shopping naman, parehong patay iyan. The
court will dismiss both. I-disciplinary action pa ang abogado. There
is no contempt of court in litis pendentia.
A: There are four (4) requisites:

1)
Identity of parties between the two actions, or at least

such as represent the same interest in both actions;
In the 2 actions, the parties are the same the same
plaintiff, same defendant. Literally, they may not be the
same but the persons who are filing the second case are
persons who are actually doing it on your behalf. So they
also represent the same interest.
That is now the relationship of forum shopping and litis pendentia.

Another case, also penned by Justice Panganiban in the same year,
1996, where he also made a statement that forum shopping and
litis pendentia are almost identical is the case of
2)
Substantial Identity of rights asserted or cause of action

and relief prayed for; The rights asserted are the same.
The relief prayed for in both actions are the same.
EMPLOYEES COMPENSATION COMMISSION vs. CA 257 SCRA

717, June 28, 1996.
3)
The relief must be founded on the same facts; So same

basis; same evidence.
HELD: Forum-shopping exists where the elements of litis

pendencia are present. The test therefore in determining the
presence of forum-shopping is whether in the two (or more case)
pending, there is identity of
4)
The identity in these particulars should be such that any

judgment which may be rendered on the other action
will, regardless of which party is successful, amount to
res adjudicata in the action under consideration.
(Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva, 57 O.G.
1040, Feb. 6, 1961; Pampanga Bus Co. vs. Ocefemia, L-
a)
parties,
223

21793, Oct. 20, 1966) In other words, the principle of res

adjudicata will apply.
mortgage contract is dismissed? So the mortgage contract is valid,

with more reason the mortgagee has the right to foreclose.
It is applicable between the same parties only when the judgment

to be rendered in the action first instituted will be such that
regardless of which party is successful, it will amount to res judicata
against the second action. (HSBC vs. Aldecoa & Co., GR No. L 8437
March 23, 1915)
Therefore, the fourth requisite is missing because the fourth

requisite is regardless of who wins in the first case, it will bar the
second case. But here, the second case would be barred if the
mortgagor wins but if the mortgagee wins, the second case will not
be barred. So the fourth element is not present. There is no litis
pendencia in this case.
CASE: The husband filed an action for legal separation on the

ground of adultery of his wife. In the same action, the wife
demanded, in a counterclaim, maintenance and support for her
and her children. Subsequently, the wife filed an independent
action for support against her husband. Will the second action
prosper?
FRANCISCO vs. VDA. DE BLAS 93 Phil. 1

FACTS: Jayhan filed a case against Jessa for recovery of a piece of
land accion publiciana. According to Jayhan, she is the owner of
the land occupied by Jessa, so Jessa should surrender the land to
him. Of course, Jessa will deny that.
A: NO, the issue of support having been raised in the first action as
a counterclaim, it cannot be made an issue in a subsequent
independent action. Hence, the independent action for support
should be dismissed on the ground of lis pendens, all the other
requisites being present. (Olayvar vs. Olayvar, supra)
While the action was pending, Jessa naman filed another case
against Jayhan for quieting of title (that your title be in effect
confirmed as valid so that you will not be molested anymore by the
plaintiff). So in effect, Jessa is asking the court to declare him as the
real owner and is therefore entitled to possess the property.
Litis Pendentia; Fourth Element: THE IDENTITY IN THESE

PARTICULARS SHOULD BE SUCH THAT ANY JUDGMENT WHICH
MAY BE RENDERED ON THE OTHER ACTION WILL, REGARDLESS OF
WHICH PARITY IS SUCCESSFUL, AMOUNT TO RES ADJUDICATA IN
THE ACTION UNDER CONSIDERATION.
ISSUE: Is there litis pendencia? Can both cases prosper?

HELD: Alright, lets analyze. Suppose Jayhan wins the case for
recovery, the court in effect is saying that Jayhan is the real owner,
that practically render moot and academic because practically if
Jayhan wins the first case, the action of Jessa for quieting of title
will fail because the owner pala is Jayhan. In other words, if Jayhan
wins the first case, it will bar the second.
Now, out of these requisites the last one is the most important
the identity of parties, rights, relief and facts should be such that
any judgment which the court will render in the other action will
automatically be res adjudicata in the present action. Any
judgment which the court will render in the first case regardless of
who wins will amount to res adjudicata in the second action. That
is a very important requisite. Let us see how that was applied by
the SC.
Now, suppose Jessa will win in the first case, the court in effect is
saying that Jayhan is not entitled to possess, she is not the owner,
Jessa is the owner. In effect, the title of Jessa is automatically
granted, rendering unnecessary the second case. So, that is a
perfect example of litis pendentia whoever wins in the first case
will bar the second. This is an illustration of the fourth requisite.
TAMBUNTING vs. ONG L-2284, August 11, 1950

FACTS: It involves a case between a mortgagor and a mortgagee.
Mortgagor filed a case against the mortgagee. The nature of the
action is annulment of mortgage contract annulment of real
estate mortgage. While their action was pending, the mortgagee
filed another action against the mortgagor and the action is
foreclosure of the same mortgage.
So in this case, there is litis pendentia.
Now, the mortgagor, the plaintiff in the first case, filed a motion to
dismiss the second case on the ground of litis pendentia on his
argument that suppose I win in this case of annulment of mortgage
and the mortgage contract is annulled, what are you foreclosing?
There is nothing to foreclose. So the second action for foreclosure
will have as basis if the mortgage contract is annulled in the first
case. So there being litis pendencia, the second case should be
dismissed.
TEODORO vs. MIRASOL 99 Phil. 150
Which case should be dismissed?

A motion to dismiss may be filed in either suit, not necessarily in the
one instituted first.
FACTS: There was a lease contract between the lessor and the
lessee and they were already quarreling. According to the lessor,
Mr. Lessee, I would like to remind you that our contract is only
good up to April. So 3 months from now, expired na. You better
look for a place to transfer because Im not going to renew the
lease contract.
But the lessee insisted that contract will be valid until next year yet.
The lessor asserted that the contract is only good up to April. They
HELD: It is true that the second case will have no more leg to stand
on if the mortgagor will win the first case, that is if you win. Eh
paano kung talo ka? Suppose the first case of annulment of
224

already have a quarrel as to whether that contract is only good up

to April or until next year.
the dismissal of the first case by applying another criterion the

criterion of interest of justice. In applying this standard, the court
should ask which case is in a better position to serve the interest
of justice or which case should remain to serve the interest of
justice taking into account the nature of the controversy, the
comparative accessibility of the court to the parties and other
similar factors.
Now, what happens, the lessor pre-empted the filing by the lessee
of an ejectment case by filing immediately an action for declaratory
relief under Rule 63 on the issue on whether the contract will
expire by April or next year pa. The case dragged on and April came
and of course the contention of the lessor is that the contract has
expired. So he filed an unlawful detainer on the ground that the
lease contract has expired.
So, the general rule is: dismiss the second case, let the first case
remain based on the rule on priority in time. But sometimes, the SC
ruled that it is better that the first case is dismissed by using the
standard of (1) more appropriate action or (2) interest of justice.
ISSUE: Is there litis pendentia? If there is, which case should be

dismissed?
And the SC said, it will boil down to this was the first action filed
in good faith or bad faith? In the case of TEODORO, it was obvious
that the first action was filed by the lessee in bad faith because the
lessee knew that by April, the lessor will file the action to eject. Of
course, meron man siyang depensa. His defense will be the
contract will expire next year pa but siguro he believes in the
principle of priority in time, the best defense is an offense. So,
inunahan ko siya. So, may defense in the unlawful detainer case
was converted into a cause of action. Instead of using his argument
as a defense in his answer to the unlawful detainer, he converted it
into a cause of action. So, We will dismiss you. That was what
happened in TEODORO. So, more or less, that is the explanation
given by the SC in VICTRONICS case.
HELD: The dismissal of the first action would be proper. Why?

What is the ground for dismissal? that there is another action
pending between the same parties for the same cause. The law
does not say that there is another prior action pending. So, in litis
pendentia, either one can be dismissed. It does not necessarily
follow that the first one will be dismissed or the second one. Either
one will be dismissed.
Now, the most exhaustive discussion on this issue on which case
should be dismissed when there is litis pendentia was the 1993
case of:
VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF MAKATI
217 SCRA 517
Now, in a case the SC again touched on this criteria about litis

pendentia. Practically, it is a reiteration of VICTRONICS COMPUTERS
case. I am referring to the case of
HELD: As a general rule, it should be the second case that should be

dismissed by applying the principle of priority in time and the Latin
maxim of qui prior est tempore ochor estiore (he who is before in
time is the better law). Priority in time gives preference in law. And
that is common sense. Just like in Labor Law last in, first out
kung huli kang dumating, you are the last to be employed. Kung
termination, unahin ka rin, last ka eh. So thats the general rule.
ALLIED BANKING CORP. vs. CA 259 SCRA 371, July 26, 1996
HELD: Justice Mendoza summarized the principle in this manner:
Given, therefore, the pendency of two actions, the following are
the relevant considerations in determining which action should be
dismissed:
But the general rule is not true all the time just like what happened
in the case of TEODORO VS. MIRASOL where the first case was
ordered dismissed. Also in the case of RAMOS VS. PERALTA (98
Phil)
Q: What was the principle used in the case of TEODORO and
RAMOS in sustaining the dismissal of the first case instead of the
second?
A: The criterion which was applied by the SC was: What is the more
appropriate action to remain. In the case of TEODORO, since we are
talking about ejectment here, the unlawful detainer case is the
more appropriate action to remain rather than the first
(declaratory relief). It is not a question of which case was filed first
but which action should stay for the good of the parties. The same
thing happened in the case of
1)
the date of filing, with preference generally given to

the first action filed to be retained that is the
priority in time rule;
2)
whether the action sought to be dismissed was filed

merely to preempt the later action or to anticipate
its filing and lay the basis for its dismissal that is
the TEODORO vs. MIRASOL case the action is filed
merely as an anticipating action; and
3)
whether the action is the appropriate vehicle for

litigating the issues between the parties.
So that is practically again the summary of VICTRONICS

COMPUTERS case.
PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA 18 SCRA 407
ROA MAGSAYSAY vs. MAGSAYSAY 98 SCRA 592
NOTE: This problem was already asked in the Bar.
HELD: In this case there was also a conflict on which case should be
dismissed and which case should remain. The trial court ordered
225

FACTS: Cholo is a resident of Manila; Lew is a resident of Davao.

There was contract between them. Cholo filed a case against Lew
on lets say, January 5 in Manila where he resides, based on that
contract. The venue is proper because the plaintiff is a resident of
Manila.
motion, so much so that the said Davao Court has not yet acquired
jurisdiction over the parties. The CA reversed.
Now, lets say on January 10, Lew not knowing about the Manila
case filed an identical action against Cholo in Davao City. So hindi
alam ni Lew na mayroon na palang kaso. So dalawa na. And then on
January 15, Lew received summons in Manila case. By January 20,
Cholo filed a motion to dismiss the Davao case on the ground of
litis pendentia.
HELD: YES. Lis pendens as a ground for the dismissal of a civil

action refers to that situation wherein another action is pending
between the same parties for the same cause of action. To
constitute the defense of lis pendens, it must appear that not only
are the parties in the two actions the same but there is substantial
identity in the cause of action and relief sought.
According to Lew, there is no litis pendentia because when I filed

may case against Cholo, there is no pending action to talk about
because hindi ko alam. I received the summons very much later.
Further, it is required that the identity be such that any judgment

which may be rendered in the other would, regardless of which
party is successful, amount to res judicata on the case on hand. All
these requisites are present in the instant case: 1.)The parties in
the Davao and Caloocan cases are the same; 2.) They are suing
each other for sums of money which arose from their contract of
agency; 3.) The relief prayed for is based on the same facts and
there is identity of rights asserted; 4.) Any judgment rendered in
one case would amount to res judicata in the other.
ISSUE: Should the action in the Kalookan RTC be dismissed on the

ground of lis pendens?
ISSUE: Was there litis pendentia? Is Lew correct?

HELD: There was litis pendentia. Lew is wrong. Why? When does an
action, become pending? An action becomes pending upon the
filing of a case in court and the payment of docket fee. The actions
does not become pending only from the time you receive the
summons. It is pending form the moment it was filed. Therefore
when it was filed on January 5, it is already pending although you
did not know about it. That is the reasoning in this case.
In conceptualizing lis pendens, we have said that like res judicata

as a doctrine, litis pendentia is a sanction of public policy against
multiplicity of suits. The principle upon which a plea of another
action pending is sustained is that the latter action is deemed
unnecessary and vexatious.
ANDRESONS GROUP vs. CA GR 114928; January 21, 1997

FACTS: Willy Denate entered into an agency agreement with AG as
its commission agent for the sale of wines and liquors in Davao
City, Davao provinces and North Cotabato. On November 18, 1991,
Denate filed a civil action for collection of sum of money against AG
before the RTC Davao.
AG asserts that the Davao Court had not yet acquired jurisdiction
over the parties as the summons had not been served as of April
21, 1992 and it claims that pendency of a case, as contemplated by
the law on lis pendens, presupposes a valid service of summons.
This argument is untenable. A civil action is commenced by filing a
complaint with the court. The phraseology adopted in the Rules of
Court merely states that another action pending between the same
parties for the same cause is a ground for motion to dismiss. As
worded, the rule does not contemplate that there be a prior
pending action, since it is enough that there is a pending action.
Neither is it required that the party be served with summons
before lis pendens should apply. The rule of lis pendens refers to
another action. An action starts only upon the filing of a complaint
in court.
Denate alleged that he was entitled to the amount of P882,107.95,

representing commissions from AG but that AG had maliciously
failed and refused to pay the same. On December 19, 1991, AG
likewise filed a complaint for collection of sum of money with
damages against Denate with the RTC Kalookan City. AG alleged
that Denate still owed it the sum of P1,618,467.98 after deducting
commissions and remittances. Denate filed a Motion to dismiss the
case with the Kalookan RTC on the ground that there was another
action pending between the same parties for the same cause of
action, citing the case earlier filed with the RTC of Davao City.
It must be emphasized that the rule on litis pendentia does not

require that the later case should yield to the earlier. The criterion
used in determining which case should be abated is which is the
more appropriate action or which court would be in a better
position to serve the interests of justice. Applying these criteria,
and considering that both cases involve a sum of money collected
in and around Davao, the Davao Court would be in a better position
to hear and try the case, as the witnesses and evidence would be
coming from said area.
AG filed its opposition to the Motion to Dismiss on the ground that

the RTC of Davao had not acquired jurisdiction over it.
RTC of Kalookan City ruled that: the Davao case involves the same
parties, and involves substantial identity in the case of action and
reliefs sought, as in the instant case however, jurisdiction over the
parties has already been acquired by the RTC Kaloocan, as Denate
received the summons as early as Jan 8, 1992, and AG. On the
other hand, the summons in the Davao case has not yet been
served as of Apr 21, 1992, the date of the hearing of the instant
WHEREFORE, the decision of the CA is hereby AFFIRMED.
226

Sixth Ground: [f] THAT THE CAUSE OF ACTION IS BARRED BY A

PRIOR JUDGMENT OR BY THE STATUTE OF LIMITATIONS;
settled by the judgment therein as far as the parties to that action

and actions in privity with them are concerned and cannot be again
litigated in a any future action between such parties or their
privies, in the same court or any other court of concurrent
jurisdiction on either the same or different cause of action, while
the judgment remains unreversed by proper authority (Moraga vs.
Spouses Somo 501 SCRA 118).
Actually there are two grounds here:

1.)
2.)
Barred by prior judgment (RES ADJUDICATA) and

Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also

related to splitting of a cause of action. The only difference is: there
is already a judgment in the first action which has become final and
executory. That is why, you have to go back to Rule 2, Section 4
what is the effect of splitting a cause of action? The pendency of
one case or judgment in one case is a ground f or the dismissal of
the other.
Elements of res judicata:

(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 second actions,
identity of parties, subject matter and causes of
action.(PCI Leasing & Finance, Inc. Vs. Sps George M. dai
and Divina Dai GR No. 148980, Sept. 21, 2007)
So, if there is a case on appeal, the proper ground for dismissal

would be litis pendentia rather than res adjudicata because the
case is still pending before the CA the judgment is not yet final.
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 even if the first case did not implead
the latter (Fels, Inc. vs. Province of Batangas, supra).
Res judicata as a ground for dismissal is based on two grounds,

namely:
(1) Public policy and necessity, which makes it to be the
interest of the State that there should be an end to
litigation republicae ut sit litium; and
The doctrine of res judicata applies to quasi-judicial proceedings

(Heirs of Wenceslao Tabia vs. CA, saupra), but there is no res
judicata in criminal proceedings.
(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 on the part of the suitors
to the preservation of the public tranquility and
happiness (Fels, Inc. vs. Province of Batangas GR No.
168557, February 19, 2007).
Thus, 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 vs. Office of the Ombudsman GR 166038 December 4,
2007).
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. Litigation 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 (ibid).
Note: there can be res judicata without a trial, such as in a

judgment on the pleadings (Rule 34); a Summary Judgment (Rule
35); or an order of dismissal under Section 3 of Rule 17.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of
time.
Concepts of res judicata:
A motion to dismiss on the ground of prescription will be given due

course only if the complaint shows on its face that the action has
already prescribed.
(1) Bar by prior judgment, and

(2) Conclusiveness of judgment (Heirs of Wenceslao
Tabia vs. CA GR Nos. 129377 & 129399 February 22,
2007).
Prescription and laches:
The first concept bars the prosecution of a second action upon the
same claim, demand or cause of action.
The second concept states that a fact or question which was in
issue in a former suit and was there judicially passed upon and
determined by a court of competent jurisdiction, is conclusively
227
1)
Prescription is concerned with the fact of delay while

laches is concerned with the effect of delay;
2)
Prescription is a matter of time while

laches is a matter of equity;

3)
Prescription is statutory while

laches is not;
4)
Prescription applies at law,

laches in equity;
5)
Prescription is based on fixed time while

laches is not.
I think the language of the previous rule is: The complaint states no
cause of action. That is the 64 Rules. But 1997 Rules: The pleading
asserting the claim states no cause of action. This is broader
because the pleading which does not state a cause of action could
be a complaint, counter-claim, cross-clam or third-party complaint.
So, it is broader.
Q: How will you know that the pleading (e.g. complaint) states or
does not state a cause of action?
If the person claiming to be the owner of the property is in actual

possession thereof, the right to seek reconveyance, which in effect
seeks to quiet title to the property, does not prescribe. One who is
in actual possession of a piece of land claiming to be the owner
thereof may wait until his possession is disturbed or his title is
attacked before taking steps to vindicate his right. (Heirs of Marcela
Salonga Bituin vs. teofilo Caoleng, Sr. GR No. 15756, Aug. 10, 2007)
A: The principle to remember is: Whether the pleading states a

cause of action or not is determined only by allegations in the
pleading. The rule is similar to on the ground of lack of jurisdiction
under paragraph [b].
Failure to state a cause of action and not lack or absence of cause
of action is the ground for a motion to dismiss. The former means
there is insufficiency in the allegations in the pleading. The latter
means that there is insufficiency in the factual basis of the action.
The grounds on motion to dismiss are waivable based on Rule 9,

Section 1 defenses and objections not pleaded whether in a
motion to dismiss or in the answer are deemed waived. HOWEVER
when it appears from the pleadings or the evidence on record:
Effect of action on motion to dismiss and corresponding remedy:
1)
that the court has no jurisdiction over the subject matter

(Rule 16, Section 1 [b]);
1.
Order granting a motion to dismiss is a final order

(without prejudice) -- remedy is to refile;
2)
that there is another action pending between the same

parties for the same cause (Rule 16, Section 1 [e]); or
2.
Order granting the motion with prejudice -- remedy is

appeal;
3)
that the action is barred by a prior judgment (Rule 16,

Section 1 [f]); or
3.
4)
that the action is barred statute of limitations (Rule 16,

Section 1 [f]),the court shall dismiss the claim.
Order denying the motion to dismiss is interlocutory - file answer and proceed with the trial. If the decision is
adverse, appeal therefrom and raise as error the denial
of the motion to dismiss. If there is grave abuse of
discretion amounting to lack or excess of jurisdiction,
certiorari or prohibition may lie under Rule 65.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM

STATES NO CAUSE OF ACTION;
The defendant is not allowed to say that the plaintiff has no cause
of action because what he is saying in his complaint is not true and
this is what is true. No, that will not lie. You have to hypothetically
admit again.
That is also an important one the pleading asserting the claim

does not state a cause of action. In most cases, it is the defendant
who files a motion to dismiss citing this ground.
What is the rule? When a defendant files a motion to dismiss under

this ground, he hypothetically admits the truth of all the allegations
raised in the complaint. And he is posing this question: Assuming
for the sake of argument that everything contained in your
complaint or pleading is really correct, are you entitled to the relief
prayed for?
When the ground for the dismissal is that the complaint states no
cause of action, such fact can be determined only from the facts
alleged in the complaint.
It is beside the point whether or not the allegations in the
complaint are true, for with a motion to dismiss a complaint based
on lack of cause of action, the movant only hypothetically admits
the truth of the facts alleged in the complaint; that is, assuming
arguendo that the facts alleged are true, those allegations are
insufficient for the court to render a valid judgment upon the same
in accordance with the prayer of the complaint. (Universal
Aquarius, Inc., et al., vs. Q.C. Human Resources Management
Corporation, GR No. 155990, Sept. 12, 2007)
If the answer is YES, then it states a cause of action. If the answer is

NO, even then there is something wrong in the complaint. It still
states no cause of action. Therefore, when the defendant disputes
the truth of the allegations of the complaint, the correct move is to
file an answer and not a motion to dismiss. He cannot dispute the
allegation in the pleading because he hypothetically admits them.
That is why the SC said in the case of
Remember that under Rule 2, Section 1, every civil action must be

based on a cause of action. Therefore, the four (4) elements of
cause of action must be alleged. If one element is missing, there is
no cause of action and it is now a ground for dismissal.
228

MUNICIPALITY OF BIAN vs. GARCIA 180 SCRA 576 [1989]
TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was
issued in the name of Remigio. Another contract of lease was
executed by Tan Keh and Remigio in favor of Kiat to further
safeguard Kiat's interest on the land, but Kiat never paid any rental
and no demand whatsoever for the payment thereof had been
made on him.
HELD: The lack of cause of action is not a ground for the dismissal
of an action under Rule 16. The ground is the failure of the
complaint to state a cause of action which is obviously not the
same as the plaintiff not having a cause of action. The lack of cause
of action becomes evident during the course of the trial but
whether the complaint states a cause of action is only limited to
what the complaint says.
Remigio was killed in 1968. At his wake, Rosita was reminded of

Kiat's ownership of the land and she promised to transfer the land
to Kiat who by then had already acquired Filipino citizenship by
naturalization.
So, my complaint may state a cause of action when in reality it does

not. At that moment, you cannot dismiss it.
Rosita, however, never made good their promise to convey the

land despite repeated demands by Kiat. In fact, Rosita had the land
fraudulently transferred to her name under TCT 117898. Thus, the
filing of the complaint for recovery of property.
Now, of course the rule that a defendant who files a motion to

dismiss hypothetically admits all the allegations in the complaint, as
explained by the SC, refer only to material allegations of ultimate
facts. If those are evidentiary facts or conclusions of fact or law,
they are not admitted, for in the first place, they have no place in
the pleading.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint,

claiming that: the complaint stated no cause of action; the cause of
action has long prescribed; the cause of action has long been
barred by a prior judgment; and, the claim has been waived,
abandoned and/or extinguished by laches and estoppel.
That is the ruling in the 1990 case of

RAVA DEV'T CORP. vs. CA 211 SCRA 144 [1992]
The RTC issued an order dismissing Kiat's complaint, acceding to all

the grounds set forth by Rosita in her motion to dismiss. CA set
aside the dismissal and ordered the remand of the case for further
proceedings.
HELD: The hypothetical admission is however limited to the

relevant and material facts well pleaded in the complaint and
inferences fairly deductible therefrom. The admission does not
extend to conclusions or interpretations of law; nor does it cover
allegations of fact the falsity of which is subject to judicial notice.
HELD: There is merit in the petition. There being no trust, express

or implied, established in favor of Kiat, the only transaction that
can be gleaned from the allegations in the complaint is a double
sale, the controlling provision for which is Art. 1544 of the Civil
Code. Kiat alleged that he bought the subject properties from Tan
Keh in 1954 but nonetheless failed to present any document
evidencing the same, while Remigio, as the other buyer, had in his
name TCT 53284 duly registered on Oct 13, 1958.
Meaning, you allege there something which is 100% false and the
court knows it, but you filed a motion to dismiss, are you deemed
to hypothetically admit something which everybody knows is false?
NO. When you file a motion to dismiss, you are deemed to admit
everything there is true except matters which are 100% false and
which the court itself knows to be false, or the conclusions of the
pleader because in the first place, conclusions have no place in the
pleading.
Remigio, beyond doubt, was the buyer entitled to the subject

properties since the prevailing rule is that in the double sale of real
property, the buyer who is in possession of a Torrens title and had
the deed of sale registered must prevail. Rosita is in possession of
TCT 117898 which evidences her ownership of land. Kiat relies
simply on the allegation that he is entitled to the properties by
virtue of a sale between him and Tan Keh who is now dead.
Obviously, Kiat will rely on parol evidence which, under the
circumstances obtaining, cannot be allowed without violating the
"Dead Man's Statute" found in Sec. 23, Rule 130. Clearly then, from
a reading of the complaint itself, the complaint indeed does not
spell out any cause of action.
ROSITA TAN vs. CA 295 SCRA 247 [Sept. 9, 1998]

FACTS: The controversy centers on 2 parcels of land, Manila
previously owned by one Alejandro Tan Keh and which were then
covered by TCT 35656.Fernando Tan Kiat claimed that he bought
the land from Tan Keh in 1954, but was unable to effect immediate
transfer of title in his favor in view of his foreign nationality at the
time of the sale. Nonetheless, as an assurance in good faith of the
sales agreement, Tan Keh turned over to Kiat the owner's duplicate
copy of TCT 35656 and, in addition, executed a lease contract in
favor of Kiat for 40 years.
We also agree with Rosita's submission that Kiat's cause of action

has prescribed. TCT 53284 in the name of Remigio was registered
on Oct 13, 1958, while TCT 117898 in the name of Rosita, was
issued on Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA
held that the 10-year prescriptive period for the reconveyance of
property based on an implied trust cannot apply in this case since
Kiat was in actual possession of the subject properties.
However, in 1958, Tan Keh sold the subject properties to Remigio

Tan, his brother and father of Rosita Tan, with the understanding
that the land are to be held in trust by Remigio for the benefit of
Kiat and that Remigio would execute the proper documents of
transfer in favor of Kiat should Kiat at anytime demand recovery of
land.
229

However, Kiat's occupation of the land was never in the concept

of an owner since he was a mere lessee who is estopped from
denying the title of Remigio as owner-lessor. It thus becomes
evident that the filing of Kiat's complaint in 1993 35 years after
TCT 53284 in the name of Remigio was registered and 18 years
after the issuance of TCT 117898 in the name of Rosita was way
beyond the 10-year time limit within which reconveyance of
property based on an implied trust should be instituted. Kiat's
cause of action, assuming that it exists, has clearly prescribed.
moving to dismiss the entire case because there is no cause of

action based on the evidence you presented.
Plaintiff: No, the cause of action is determined only based on the
allegations in the complaint and you do not look at the evidence.
HELD: That is the general rule. If nag-present ka na ng ebidensiya in
the preliminary injunction, the court can now determine whether
there is a cause of action also based on the evidence. So that is the
exception because there has been a reception of evidence ahead of
a motion to dismiss.
Finally, Kiat is guilty of laches. Kiat's possession of the land cannot

be made the basis to deflect the effects of laches because he is a
mere lessee who, to repeat, cannot assert any adverse claim of
ownership over the subject properties against the lessor-owner.
What ought to be in focus is that, Kiat was not able to effect the
transfer of title over the subject properties in his favor upon his
purchase thereof from Tan Keh in 1954 because he was still a
foreigner at that time. But Kiat later on claimed that he was already
a Filipino national when he reminded Rosita of his ownership of the
subject properties during Remigio s wake sometime in 1968.
It is true that the determination of the sufficiency of a cause of

action must be limited to the facts alleged in the Complaint and no
other should be considered. However, where a hearing was held
and documentary evidence was presented, not on the Motion to
Dismiss but on the question of granting or denying an application
for a Writ of Preliminary Injunction, a motion to dismiss for
insufficiency of cause of action will be granted if documentary
evidence admitted by stipulation disclosing facts sufficient to
defeat the claim which authorizes the court to go beyond
disclosure in the complaint.
It may be reasonably deduced from these allegations that Kiat

acquired Filipino citizenship by naturalization, thus entitling him to
own properties in the 1960's, more or less. His mistake, if it is one,
is that he tarried for 30 years before formally laying claim to the
subject properties before the court. Considerable delay in asserting
one's right before a court of justice is strongly persuasive of the
lack of merit of his claim, since it is human nature for a person to
enforce his right when the same is threatened or invaded. Thus,
Kiat is estopped by laches from questioning the ownership of the
land.
So that would be the exception: where evidence has already been

presented in the main cause of action because of the application
for preliminary injunction.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH
IN THE PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing
obligation
are
Payment,
Performance,
Condonation,
Compensation, Remission, etc. So if I have already paid a sum of
money and you are filing a case to collect such amount, I can file a
motion to dismiss on the ground that the claim or demand set forth
in the complaint has already been paid or otherwise extinguished.
WHEREFORE, the assailed decision of CA is SET ASIDE, and a new

one is rendered DISMISSING Fernando Tan Kiat's complaint.
Q: Now, is there an exception to the rule that when the court
determines whether there is a cause of action or not, the court
cannot look at the evidence all must be based on the complaint
and there should be no appreciation of any evidence?
Laches as a ground for a motion to dismiss

In one case, in reversing the RTCs order of dismissal, the CA 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
Section 1 of Rule 16 of the Rules of Court. The SC categorically held
that the CA is not entirely correct. Under paragraph (h) of Sec. 1
of Rule 16, one of the grounds for the dismissal is where a claim or
demand set forth in the plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished. The Court declared:
A: Based on the EXCEPTION in the case of

SANTIAGO vs. PIONEER SAVINGS & LOAN BANK 157 SCRA 100
[1987]
FACTS: The plaintiff filed a complaint against defendant with a
prayer for a preliminary injunction. So, it is not only a complaint but
plaintiff applied for a provisional remedy. And under the law in
provisional remedy, that must be heard immediately because that
is urgent, eh! And in a preliminary injunction, there must be a
hearing because preliminary injunction cannot be granted ex parte.
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 plaintiffs 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
So even before the answer could be filed, nagkaroon na ng hearing

and the plaintiff already presented evidence on his cause of action
during the hearing for the issuance of the writ of preliminary
injunction. Then after the hearing, here comes now the defendant
230

involved. Thus, being factual in nature, the elements of laches

must be proved or disproved through the presentation of
evidence by the parties (Pineda vs. Heirs of Eliseo Guevara, GR
143188 February 14, 2007).
So it should appear form a verified complaint or petition that

earnest efforts toward a compromise have been made, but the
same have failed. If it is shown that no such efforts were in fact
made, the case must be dismissed.
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS

FOUNDED IS UNENFORCEABLE UNDER THE PROVISIONS OF THE
STATUTE OF FRAUDS
Q: What about a suit against a nephew?

A: Article 151 will not apply. One can file directly to the court
because even though he is your relative he is not a member of your
family.
Statute of Frauds are contracts under Article 1403 of the Civil

Code which are unenforceable if not made in writing. However
there is still a valid contract, only they are unenforceable because
they were not reduced into writing.
Q: How about a suit against a brother and a stranger?

A: There is no need for the requirement of earnest efforts. It is a
mixed case, there is already a stranger included.
EXAMPLES of Statute of Frauds under Article 1403:

1)
a contract that by its terms is not to be performed within

one year from the making of such contract;
2)
a special promise to answer for the debt, default, or

miscarriage of another;
3)
an agreement made in consideration of marriage, other

than a mutual promise to marry;
4)
an agreement for the sale of goods, chattels or things in

action, at a price not less than five hundred pesos;
5)
an agreement for the leasing for a longer period than

one year, or for the sale of real property or an interest
therein;
6)
a representation as to the credit of a third person.
Now, under the last sentence of Article 151, This rule shall not
apply to cases which may not be the subject of compromise under
the Civil Code. This refers to Article 2035 of the New Civil Code:
Art. 2035. No compromise upon the following questions
shall be valid:
1.
2.
3.
4.
5.
6.
Under the 1964 Rules, this last ground (non-compliance with a

condition precedent requirement) is not found therein. However,
there is a ground that is no longer found in the present Rules of
Court, that the suit between members of the family and that no
earnest efforts towards a compromise has been made, this was
stated as the last ground. It does not mean, however, that it can
no longer be applied. This has been incorporated under paragraph
[j] of the new rules. It is already a broader ground.
Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR FILING THE

CLAIM HAS NOT BEEN COMPLIED WITH.
Meaning, the law requires something to be done before going to
court and if you file the case in court immediately without
complying with that condition precedent, then the defendant can
move for dismissal of the complaint.
Sec. 2. Hearing of motion. At the hearing of

the motion, the parties shall submit their
arguments on the questions of law and their
evidence on the questions of fact involved
except those not available at that time.
Should the case go to trial, the evidence
presented during the hearing shall
automatically be part of the evidence of the
party presenting the same. (n)
EXAMPLES:
1.)
2.)
Failure to exhaust administrative remedies;

Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle
or compromise the suit at the barangay level before
raising the action.
3.)
The civil status of persons;

The validity of a marriage or a legal
separation;
Any ground for legal separation;
Future support;
The jurisdiction of courts;
Future legitime.
Article 151 of the Family Code contemplates suit

between family members.
During the hearing of a motion to dismiss, the movant is allowed to

present evidence to prove his claim. Like for example: the venue is
not properly laid or the action is already extinguished by payment
or the action is already barred by a prior judgment.
It must be alleged in the complaint that earnest efforts towards a

compromise is made between: husband and wife, parents and
children, ascendants and descendants, brothers and sisters,
whether full or half blood. So you are not allowed to file a case
directly between family members in order to preserve the family as
a basic social institution being the foundation of the nation.
GENERAL RULE: On hearing on a motion to dismiss, the defendant

is allowed to present evidence to prove the ground for his
dismissal.
231

EXCEPTION: He is not allowed when the grounds are:

1.)
2.)
Q: Suppose the plaintiff filed a complaint and the defendant files

a motion to dismiss, can the plaintiff still amend his complaint?
Otherwise stated, can the plaintiff still amend his complaint when
there is already a motion to dismiss?
Lack of jurisdiction over the subject matter

(paragraph [b]); or
The pleading asserting the claim states no cause of
action (paragraph [g])
A: Ah YES! Because it is the right of the plaintiff to amend his

complaint before a responsive pleading is served upon him. And a
motion to dismiss is not a responsive pleading. It is not even a
pleading (Guirao vs. Ver, April 29, 1966) The responsive pleading to
the complaint is the Answer.
When these are the grounds invoked, the defendant is not allowed
to present evidence because you are hypothetically admitting all
the allegations in the complaint as true and correct. You are not
allowed to dispute or deny those allegations. It shall be based
purely on the allegations of the complaint so you are not allowed
to prove that those allegations are not true.
Q: Now, suppose there is already an order of dismissal in which

the court has already ordered the dismissal of the case, because it
does not state the cause of action of the complaint. Plaintiff:
Alright! Motion to amend the complaint to state the cause of
action and set aside the order of dismissal. Can that still be done
at that stage where there is already an order of dismissal?
And should the case go to trial, the evidence presented shall

automatically form part of the evidence of the party presenting the
same. There is no need to present those evidences again during
the trial because the evidence during the hearing is automatically
part of the evidence during the trial. This is similar to the rule on
Bail in Criminal Procedure.
A: YES! Provided the order of dismissal has not yet become final
and executory because the rule is absolute: for as long as there is
still no responsive pleading, the right of the plaintiff to amend his
complaint is a matter of right.
Sec. 3. Resolution of motion. After the

hearing, the court may dismiss the action or
claim, deny the motion, or order the
amendment of the pleading.
The second paragraph of the section The court shall not defer the
resolution is an amendment of the previous rule. Under the
previous rule, the court had four options: 1) grant the motion; 2)
deny; 3)order amendment; and 4) defer the resolution for the
reason that the ground relied upon is not indubitable. What does it
mean?
The court shall not defer the resolution of the

motion for the reason that the ground relied
upon is not indubitable.
In every case, the resolution shall state
clearly and distinctly the reasons therefor.
(3a)
Indubitable means without a doubt, thus the ground was not

without a doubt, it is doubtful, it is not indubitable.
EXAMPLE: Defendant filed a motion to dismiss the case and the
court analyzed the ground. After analyzing, the court is not sure.
The ground seems to be valid but the court also doubts. Parang 5050 ba.
Q: How will the court rule on the motion to dismiss?

A: The following:
1.)
2.)
3.)
The court will dismiss the action. (motion is

granted);
The court will deny the motion (proceed to trial); or
The court will order the amendment of the pleading
Now the previous rule allows the court not to actit will not act, it
will not deny. The court will just postpone the resolution of the
motion to dismiss, until the trial, because the ground is doubtful.
In the course of the trial, the court may realize whether the ground
is correct or not. When the ground becomes clearer, the court may
say, All right, I will grant the motion. That was allowed under the
previous rule.
In resolving a motion to dismiss, the court is

required to give reasons for its resolution.
When the court orders the amendment of the pleading, in effect
the motion to dismiss is also denied. So, the rule is when the
ground for the dismissal can be cured by amending the complaint,
do not dismiss but require the party to amend the complaint. That
is a polite way of denying your motion to dismiss.
NOW, that is not allowed anymore. The court really has to act on
the motion: either grant it, deny it, or order the amendment.
Even under the previous rule, there were already instances where
the SC said that the courts should not postpone the resolution,
especially when the ground of dismissal is lack of jurisdiction over
the subject matter, or that the complaint states no cause of action.
Why? The court only has to read the complaint and there is no
need of presentation of evidence to rule on the motion. There
were decided cases along that line, and obviously that reasoning
predominated the committee.
Like for example, the cause of action is imperfectly stated, kulang

ng allegation ba. So the plaintiff would say: Your Honor, we will
add one sentence para makumpleto. Sabi ng judge: No! no! no!
We will dismiss. No, the judge cannot do that. Curable yon eh!
And amendment of the pleading is favored.
232

The last paragraph is self-explanatory, whether the Court denies or

grants the Motion, it must support its Order.
As a rule, the filing of an answer, going through the usual trial

process, and 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
Section 1(b), Rule 41.
Sec. 4. Time to plead. If the motion is denied,

the movant shall file his answer within the
balance of the period prescribed by Rule 11
to which he was entitled at the time of
serving his motion, but not less than five (5)
days in any event, computed from his receipt
of the notice of the denial. If the pleading is
ordered to be amended, he shall file his
answer within the period prescribed by Rule
11 counted from service of the amended
pleading, unless the court provides a longer
period. (4a)
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
therefore, would 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.
Q: Suppose defendant files a motion to dismiss and the court

granted the motion. The case is dismissed. What happens to the
case?
A: Its the end of the case. The defendant has no more problem
because the case has been ordered dismissed.
Jurisprudence declares:
Q: Suppose the court denies the motion to dismiss?
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 (Gouglas Lu Ym vs.
Gertrudes Nabua 451 SCRA 298).
A: Defendant is now obliged to file his answer. Under Rule 11, he

has within the balance of the 15 days but not less than 5 days to
file his answer.
Q: But instead of filing his answer, he files a motion to dismiss. Like
for example, after consuming 8 days, he files a motion to dismiss,
the running of the period stops. After a while, he receives an order
denying his motion. How many more days does he have?
A: Seven (7) days only. He must file his answer within the
remaining balance of the period.
This is a radical departure from the previous Rule. Under the 1964
Rules, when you file a motion to dismiss on the eight day, and the
motion is denied, you have 15 days all over again to file an answer.
NOW, no more you only have the remaining balance of the 15day period.
Sec. 5. Effect of dismissal. Subject to the right

of appeal, an order granting a motion to
dismiss based on paragraphs (f), (h) and (i) of
section 1 hereof shall bar the refiling of the
same action or claim. (n)
Q: Now, suppose you file your motion to dismiss on the 13th day,
so, two days to go. If your motion is denied, do you only have two
days to file your Answer?
Remedies of the plaintiff if the motion to dismiss is granted

If the motion to dismiss is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in character, the
plaintiff has several options.
A: NO. You are entitled to not less than five (5) days. This is
identical with Rule 12, Section 5 on Bills of Particular:
Depending upon the ground for the dismissal of the action, the
plaintiff may simply refile the complaint. For instance, if the ground
was anchored on improper venue, the plaintiff may file the action
in the proper venue.
Rule 12, Sec. 5. Stay of period to file

responsive pleading. - After service of the bill
of particulars or of a more definite pleading,
or after notice of denial of his motion, the
moving party may file his responsive pleading
with the period to which he was entitled at
the time of filing his motion, which shall not
be less than five (5) days in any event. (1[b]a)
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
233

of the statute of frauds (Sec. 5). Since the complaint cannot be

refiled, the dismissal is with prejudice. Under Section 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 Section 1(h) of Rule 41 of the Rules of Court.
1)
That the cause of action is barred by a prior judgment or

by the statute of limitations;
2)
That the claim or demand set forth in the plaintiffs

pleading has been paid, waived, abandoned or otherwise
extinguished; or
3)
That the claim on which the action is founded is

unenforceable under the provisions of the Statute of
Frauds.
Q: For example, the court says: Your action is barred by res

judicata. But actually, the court is wrong, what is your REMEDY?
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 that order. Despite Section 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 Section 8 of Rule 40. This provision specifically allows, by
necessary implication, an appeal from orders dismissing cases on
the ground of lack of jurisdiction over the subject matter. The tenor
of Section 8 of Rule 40 therefore, operates to furnish an exception
to the general rule enunciated in Section 1 of Rule 41. This situation
applies in dismissal made in the MTC and not to a dismissal in the
RTC.
A: Your remedy is to appeal from the order of dismissal, but not to

re-file the case because that would already be res adjudicata. That
is common sense.
Sec. 6. Pleading grounds as affirmative
defenses. If no motion to dismiss has been
filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as
an affirmative defense in the answer and, in
the discretion of the court, a preliminary
hearing may be had thereon as if a motion to
dismiss had been filed. (5a)
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action of
a counterclaim pleaded in the answer. (n)
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).
Q: For example, Im a defendant, I receive a complaint and I

believe I have a ground for a Motion to Dismiss under Section 1
from [a] to [j]. I will not file a motion to dismiss, instead, I will file
an answer, is that allowed?
Normally, when the motion to dismiss is granted, it does not

prevent the plaintiff from re-filing the case. Like for example, the
case is dismissed for lack of jurisdiction over the subject matter. I
can re-file that in the proper court. Or, suppose the case is
dismissed for improper venue, so I will file it in the proper venue.
A: Yes, because it is OPTIONAL for a defendant to file a motion to

dismiss. And I can file my answer and a ground for dismissal can be
raised as an affirmative defense.
But there is a new provision, that is, if the ground for a motion to
dismiss are the following you cannot re-file it anymore. That is:
paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata,
statute of limitations, prescription of the claim or statute of frauds.
So the grounds for a motion to dismiss are convertible. Instead of

filing a motion to dismiss, I will allege the grounds as affirmative
defenses, likeno cause of action, litis pendentia, res adjudicata,
payment, statute of frauds, prescription
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh
kasi res judicata na, tapos magpa-file ka na naman ng panibago?
Hindi na puwede yan. Or, it is already dismissed because the
obligation has already been paid, then you will file? That cannot be
done anymore. So, in other words, it is res judicata already. So to
summarize:
Now, if you will file an answer raising the ground for a motion to
dismiss as an affirmative defense, then you are prolonging the
agony because if the court has no jurisdiction, or there is improper
venue or whatever it is, if you file a motion to dismiss in the first
place and you are sustained, then tapos na sana!
Under Section 6, after filing of such answer, the defendant can ask
for a preliminary hearing on his affirmative defenses as if a motion
to dismiss has been filed. Meaning, this should be heard ahead.
And if the court grants the preliminary hearing, you can move your
affirmative defenses ahead and if you correct, the court will dismiss
the case. So, it has the same effect as if you file a motion to
GENERAL RULE: A case that has been dismissed can be re-filed.

EXCEPTIONS: When the case was dismissed on the following
grounds:
234

dismiss. That is why a preliminary hearing may be had as a motion

to dismiss.
defendant moved to dismiss the main action, he also moved, in

effect, for the dismissal of the counterclaim.
Now, you ask me why should the defendant do this? Why file an
answer and then preliminary hearing?
That is the prior rule. That ruling is already OBSOLETE because of

this new paragraph, 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.
Because this is a matter of strategy on trial technique. If I will file a

motion to dismiss which is not a responsive pleading, the plaintiff
may amend the complaint, and I cannot prevent him from
amending because the amendment is still a matter of right at that
moment.
That follows the general principle in trial technique. Do not expose
your adversarys mistake when he is in a position to correct them.
When the point is reached when he cannot anymore correct the
error, then, expose it. That is the advice in trial technique.
The second paragraph of Section 6 is new:
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action of
a counterclaim pleaded in the answer. (n)
Note: If the defendant would want to file a counterclaim, he
should not file a motion to dismiss. Instead, he should allege the
grounds of a motion to dismiss as affirmative defenses in his
answer with a counterclaim. A preliminary hearing may be had
thereon, and in the event the complaint is dismissed, the
defendant can prosecute his counterclaim pursuant to said second
paragraph.
Q: Suppose I will file an answer with affirmative defenses and
with a counterclaim. If the court dismisses the complaint, what
happens to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.)
2.)
The defendant can still prosecute his counterclaim

in a separate action; or
The defendant can dismiss the complaint but the
counterclaim remains alive.
In the OLD RULES, when the main case is dismissed, the

counterclaim is automatically dismissed, lalo na yong compulsory.
If the defendant moved to dismiss the case, in effect he was also
moving to dismiss his counterclaim. That is what the SC said in the
case of
INTL CONTAINER TERMINAL SERVICES vs. CA 214 SCRA 456
[OBSOLETE!]
HELD: A compulsory counterclaim is so intertwined with the
complaint that it would not remain pending for independent
adjudication by the court after the dismissal of the complaint which
had provoked the counterclaim in the first place. As a
consequence, the dismissal of the complaint operated also to
dismiss the counterclaim questioning the complaint. When
235

Rule 17
DISMISSAL OF ACTIONS
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. The dismissal occurs as of the date
the notice is filed by the plaintiff and not the date the court issues
the order confirming the dismissal.
Section 1. Dismissal upon notice by plaintiff. A

complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time
before service of the answer or of a motion
for summary judgment. Upon such notice
being filed, the court shall issue an order
confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without
prejudice, except that a notice operates as an
adjudication upon the merits when filed by a
plaintiff who has once dismissed in a
competent court an action based on or
including the same claim. (1a)
Under the rules on civil procedure, there are two types of

dismissal:
1)
2)
Dismissal with prejudice the case can no longer be refiled;

Dismissal without prejudice the case can be re-filed.
Q: Is the dismissal under Section 1 with or without prejudice?

A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case
can be re-filed.
Q: Can a plaintiff file a complaint and later change his mind and
withdraw? Meaning, can he dismiss his own complaint?
Exceptions: The dismissal will however, be with prejudice in any of

the following conditions:
A: YES. And it is a matter of right.

Q: How?
A: By filing a NOTICE OF DISMISSAL, not a motion, at ANY TIME
BEFORE service of the answer or a motion for Summary Judgment.
Meaning, for as long as the defendant has not yet filed his answer,
the plaintiff has the right to dismiss his own complaint by simply
sending the court what is known as a notice of dismissal.
This is similar to Rule 10 on amendments. When is amendment a
matter of right? For as long as there is no answer yet amendment is
a matter of right.
1.)
When in the notice of dismissal itself, the plaintiff

himself stated that he is dismissing his own
complaint with prejudice; OR
2.)
When a notice operates as an adjudication upon

the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on
or including the same claim. This is the TWODISMISSAL RULE.
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.
When the dismissal as a matter of right ceases

Under the clear terms of Section 1, the dismissal as a matter of
right ceases when an answer or a motion for summary judgment is
served on the plaintiff and not when the answer or the motion is
filed with the court. Thus, if a notice of dismissal is filed by the
plaintiff even after an answer has been filed in court but before the
responsive has been served on the plaintiff, the notice of dismissal
is still a matter of right.
ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr.

Castaos and I did not pay him. So he filed a case against me to
collect the unpaid loan. Upon receipt of the summons, I approach
Mr. Castaos, Huwag mo nalang ituloy ang kaso mo, babayaran
kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. Idismiss mo na lang iyan, babayaran kita next month, wala lang
akong kuwarta ngayon. I will refund you for the filing fee.
Ngayon, payag siya. He will send a notice to the court dismissing
his complaint. The case is dismissed, without prejudice.
Withdrawal not automatic upon filing of notice of dismissal in

court
Take note that upon filing of the notice of dismissal, the court shall
issue an order confirming the dismissal. The reason is that, the
withdrawal is not automatic. Withdrawal does not take effect until
confirmed by the court. This is in keeping with the respect due to
the court.
After one month, I did not pay again. So nagalit si Mr. Castaos, he
re-filed the same complaint, pangalawa na. I now receive another
summons. So, lapit ako sa kanya, Bakit mo fi-nile kaagad? Eh,
sabi mo, after one month magbabayad ka. Wala lang akong
kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na
ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko
ang ginasta mo sa filing fee. Tapos, naatik na naman siya. So he
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
236

files a notice of dismissal again, doble. The same case was

dismissed twice. He availed of the dismissal in Section 1 twice.
b)
After next month, hindi na naman ako nagbayad. So nagalit na

naman siya. So he filed the same case for the third time. I receive
the summons. You know what I will do? I will file a motion to
dismiss the case because the second dismissal is automatically with
prejudice.
Sec. 2. Dismissal upon motion of plaintiff.

Except as provided in the preceding section, a
complaint shall not be dismissed at the
plaintiff's instance save upon approval of the
court and upon such terms and conditions as
the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the
service upon him of the plaintiff's motion for
dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without
prejudice to the right of the defendant to
prosecute his counterclaim in a separate
action unless within fifteen (15) days from
notice of the motion he manifests his
preference to have his counterclaim resolved
in the same action. Unless otherwise
specified in the order, a dismissal under this
paragraph shall be without prejudice. A class
suit shall not be dismissed or compromised
without the approval of the court. (2a)
Two-dismissal rule
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. If the refiled
claim or complaint is dismissed again through a second notice of
dismissal, that second notice triggers the application of the twodismissal rule and the dismissal is to be deemed one with prejudice
because it is considered as an adjudication upon the merits.
For the above rule to apply, the complaints must have been
dismissed in a court of competent jurisdiction. To illustrate:
Dismissal upon motion/Discretionary dismissal

Q: If the defendant has already filed an answer or a motion for
summary judgment, may the complaint still be dismissed by the
plaintiff?
PP files in the RTC 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 MTC. Before DD
served either an answer or a motion for summary judgment, PP
filed a notice of dismissal. Does the two-dismissal rule apply?
A: YES, but it is already upon the approval of the court and upon
such terms and conditions as the court deems proper. Meaning, the
dismissal under Section 2 by the plaintiff is no longer a matter of
right because the defendant has already filed an answer or a
motion for summary judgment.
It does not. The first court, the RTC was not a court of competent
jurisdiction because the claim was below its jurisdictional amount.
Q: Suppose you file a complaint against Mr. Cruz and you
immediately changed your mind and had it dismissed under
Section 1. And then after having dismissed, you changed again
your mind and you want to re-file the action. Now, How do you
re-file the action? Do you file another complaint again?
Effect of dismissal upon a counterclaim already pleaded

If a counterclaim has been pleaded by the defendant prior to the
service upon him of the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint.
A: That was answered in the case of
Q: Suppose I file a case against you and you file an answer with
counterclaim, and I filed a notice dismissing my own complaint.
Can it be done? What happens to the counterclaim?
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO 234

SCRA 455 [1994]
A: Yes it can be done but the dismissal of the complaint DOES NOT
necessarily mean the dismissal of the counterclaim whether
compulsory or permissive. So a compulsory counterclaim remains
despite the dismissal of the complaint. The dismissal shall be
limited to the complaint.
HELD: It DEPENDS on whether the order of dismissal has

already become final.
a)
However, if the order of the court dismissing the

complaint based on your own notice has become
final after 15 days, then the only way you can revive
it is to file an entirely new action.
If within 15 days from the time it is ordered

dismissed, all that you have to do is to ask the court
to set aside the order of dismissal and re-vive the
case because the order of dismissal have not yet
become final.
Such dismissal shall be without prejudice to the right of the

defendant to either:
1)
237
prosecute his counterclaim in a separate action or

2)
in the same action. Should he choose to have his

counterclaim resolved in the same action, he must
notify the court of his preference within fifteen (15)
days from notice of the plaintiffs motion to
dismiss.
Q: What are the grounds for the dismissal of the case under
Section 3?
A: The following are the grounds for the dismissal of a case under
Section 3:
Should he opt to prosecute his counterclaim in a separate action,

the court should render the corresponding order granting and
reserving his right to prosecute his claim in a separate complaint.
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.
These alternative remedies of the defendant are available to him
regardless of whether his counterclaim is compulsory or
permissive.
1.)
The plaintiff fails to appear, for no justifiable cause,

on the date of the presentation of his evidence-inchief on the complaint;
2.)
The plaintiff fails to prosecute his action for an

unreasonable length of time (Nolle Prosequi);
3.)
The plaintiff fails to comply with the Rules of Court

or
4.)
The plaintiff fails to comply with any order of the

court for no justifiable reason or cause.
Q: Now, suppose the complaint is dismissed under Section 2 upon

initiative of the plaintiff, can he re-file the case?
First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF

THE PRESENTATION OF HIS EVIDENCE-IN-CHIEF ON THE
COMPLAINT
A: Yes. The rule is the same as Section 1 the dismissal of the

complaint under Section 2 shall be without prejudice.
Evidence-in-chief is the main evidence of the plaintiff to prove his

cause of action.
Except:
So if the plaintiff fails to appear on the date of the presentation of

his evidence-in-chief on the complaint, the case can be dismissed.
1)
2)
when otherwise stated in the motion to dismiss, or

unless otherwise specified in the order of dismissal.
In other words, the plaintiff's failure to appear at the trial after he

has presented his evidence and rested his case does not warrant
the dismissal of the case on the ground of failure to prosecute. This
has been taken from the ruling of the SC in the case of:
So, the dismissal under Sections 1 and 2 is generally without

prejudice.
Court approval necessary in the dismissal or compromise of a
class suit:
JALOVER vs. YTORIAGA 80 SCRA 100 [1977]

FACTS: Plaintiff appeared during the trial and presented his
evidence and then he rested. And then during the hearing of the
presentation of the defendants evidence, plaintiff failed to appear.
And since he failed to appear during trial, the court dismissed the
case.
The last sentence says, A class suit shall not be dismissed or

compromised without the approval of the court. When you file a
class suit, you are not only fighting for yourself you are fighting
for the others. So, you cannot just withdraw it on your own or else,
you will cause prejudice to everybody. So, in order to prevent the
person who filed it from prejudicing the right of the members of
the class suit, it cannot be dismissed or compromised without the
approval of the court.
HELD: The dismissal is WRONG. Why dismiss the case when he has
already presented his evidence? It is tantamount to deciding the
case against the plaintiff without considering the evidence that he
has presented. What is the remedy then?
Sec. 3. Dismissal due to fault of plaintiff. If, for

no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable
length of time, or to comply with these Rules
or any order of the court, the complaint may
be dismissed upon motion of the defendant
or upon the court's own motion, without
prejudice to the right of the defendant to
prosecute his counterclaim in the same or in
a separate action. This dismissal shall have
the effect of an adjudication upon the merits,
unless otherwise declared by the court. (3a)
What the court should do is to proceed with the presentation of

the defendants evidence without the plaintiff. Do not dismiss the
case the plaintiff has already presented his evidence.
That is why the language in the old rule is failure to prosecute or
another term is non-suited. But the rules of court now want to
avoid the word non-suited because it carries a different meaning.
If plaintiff fails to appear on the date of the presentation of his
evidence-in-chief, but he arrived a little bit late, or he failed to
appear because he failed to receive the notice setting it, that is
different because the law says, for no justifiable cause. If I am
late but a few minutes only, that is not a good basis to dismiss the
238

case forever. There is no intentional failure not to appear. In which

case, if there is an order of dismissal, it should be set aside because
the condition is for no justifiable cause.
A: GENERAL RULE: The court should not dismiss the case upon its
own initiative, because the grounds for dismissal are waivable. If
the defendant fails to move for dismissal, he is waiving the defect.
If it was the defendant who failed to appear without justifiable

cause, the plaintiff should move that the trial shall proceed exparte. But definitely, the defendant cannot be declared in default
because he already filed an answer.
Q: Give the EXCEPTIONS (When may the court dismiss the

complaint motu propio?).
A: The following:
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION

FOR UNREASONABLE LENGTH OF TIME.
EXAMPLE: Maybe every time his case is called to trial, he appears
but he is not ready and so he postpones. The next hearing, he
postpones again. Thats one interpretation.
Another interpretation of failure to prosecute the complaint is
filed, answer if filed, the case has not been set for pre-trial, the
plaintiff did not take the initiative to have the case set for pre-trial.
For more than one year, the case has not been set for pre-trial and
the plaintiff is not moving.
1)
Section 3, Rule 17 (Plaintiffs fault);
2)
When on its face, the complaint shows that the court has
no jurisdiction over the subject matter;
3)
When there is litis pendentia; or res adjudicata; or when

the action has prescribed;
4)
Under the Summary Rules, the court is empowered to

dismiss immediately without any motion.
Effect of dismissal under Sec. 3 on the counterclaim

Take note of what the law says, if the complaint is dismissed under
Section 3, it is without prejudice to the right of the defendant to
prosecute his counterclaim in the same or separate action. Again,
the dismissal of the main action or complaint does not mean the
dismissal of the counterclaim. This is the same with Section 2.
Or, the case cannot be tried because the defendant cannot be

summoned. The court keeps asking the plaintiff for the correct
address of the defendant. And for more than one year, the plaintiff
cannot supply the court of the correct address of the defendant.
The judge cannot have the case docketed in court forever.
Read Pinga vs. Heirs of Santiago GR 170354, June 30, 2006.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT

OR ANY ORDER OF THE COURT.
Dismissal is adjudication upon the merits

Q: If the complaint is dismissed under Section 3, can it still be refiled?
EXAMPLE: The court says, Plaintiff, you are hereby directed to

amend the complaint. Plaintiff refuses to amend. The court will
dismiss the case.
A: NO, the dismissal this time shall have the effect of adjudication
upon the merits. Meaning, res adjudicata applies, as if the case has
already been decided. Therefore the elements of res adjudicata
should also be present. The dismissal is with prejudice unless
otherwise declared by the court.
Remember that case I cited where the complaint was filed in the
name of for example, PANINGKAMOT STORE vs. SO and SO. The
SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not
a person. It is only the name of the business establishment. Only
natural person or juridical persons may be subject of the suit.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with

prejudice.
Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to
amend in order to reflect the owner of the store. So the court
directs the plaintiff to amend. Ayaw mo i-amend ha? This time
i-dismiss ko for failure to comply with the courts order.
EXCEPTION: Unless the court provides otherwise or if the court has

not yet acquired jurisdiction over the person of the defendant.
(Herrera vol. 1 p. 798)
Other Examples: Amend the pleading, submit a bill of particulars or

certification of non-forum shopping.
EXAMPLE: When the case was called for trial, plaintiff did not
appear. Defendant moved to dismiss under Section 3. The court
dismissed the case. Can the case be re-filed? NO, the dismissal is
with prejudice. (General Rule)
Now, Section 3 says, may be dismissed upon motion of the

defendant or upon the courts own motion (motu propio).
Suppose the court will say, For non-appearance of the plaintiff,

the complaint is dismissed without prejudice. Can the case be refiled? YES. (Exception)
Dismissal generally upon motion; exceptions

Q: As a general rule, can a court dismiss a complaint without any
motion made by the defendant?
On the other hand, one of the interesting cases on this (the effect
of res adjudicata because when we say res adjudicata, it had to
239

be correlated with the elements of res adjudicata in Rule 39) is the

case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA 166 SCRA 39
[1988]
FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his whereabouts
is now unknown. Several attempts made by the plaintiff to look for
him failed. After a while the court dismissed the complaint for
RBPs failure to prosecute. And the order of dismissal was silent.
So, following Section 3, the dismissal is with prejudice.
Then later on, the plaintiff (RPB) discovered the whereabouts of
the defendant. The RPB re-filed the complaint. Defendant moved
to dismiss because when the first complaint was dismissed and the
order of dismissal was silent then the dismissal has the effect of an
adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with
the elements of res adjudicata under Rule 39. One of the elements
of res adjudicata is: When the case is terminated, the court has
jurisdiction over the case both as to the person and the subject
matter;
In the case of RPB, the court never acquired jurisdiction over the
person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of res
adjudicata.
Meaning, Section 3 presupposes that the court acquired jurisdiction
over the subject matter of the case, and the parties in the previous
case in order that the dismissal be with prejudice.
Sec. 4. Dismissal of counterclaim, cross-claim,
or third-party complaint. The provisions of
this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the
claimant by notice as in section 1 of this Rule,
shall be made before a responsive pleading
or a motion for summary judgment is served
or, if there is none, before the introduction of
evidence at the trial or hearing. (4a)
It means that the rules apply to dismissal of cross-claim,
counterclaim, or third-party complaint at any time before an
answer is filed against a counterclaim, cross-claim or third-party
complaint, plaintiff may dismiss his claim under Section 1, Rule 17.
A dismissal or discontinuance of an action operates to annul orders,
rulings or judgments previously made in the case, as well as all
proceedings had in connection therewith and renders all pleading
ineffective. (Servicewide Specialist, Inc. vs. CA GR No. 110597, May
8, 1996)
240

Rule 18
PRE-TRIAL
court shall issue a notice of pre-trial (A.M. No. 03-1-09-SC, July 13,
2004).
Meaning of last pleading
Pre-trial is a mandatory conference and personal confrontation

before the judge between the parties and their respective counsel.
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 3rd
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 vs. Juan 120 SCRA 403) which is to be filed within 10
days from the service of the pleading responded to (Sec. 6 R 11).
Pre-trial is mandatory in civil cases (Sec. 2; Interlining Corporation

vs. Philippine Trust Company 378 SCRA 521; Tiu vs. Middleton 310
SCRA 580). It is a procedural device held prior to the trial for the
court to consider the purposes enumerated in Section 2.
It is mandatory for the trial court to conduct pre-trial in civil cases in
order to realize the paramount objective of simplifying,
abbreviating, and expediting trial. In light of these objectives, the
parties are mandatorily required to submit their respective pre-trial
briefs. Failure of the parties to do so is a ground for dismissal of the
action with prejudice, unless otherwise ordered by the court. (Dr.
Emmanuel Vera vs. Ernesto F. Rigor and CA, GR No. 147377, August
10, 2007)
When 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 439). However, the last
pleading 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).
In all criminal cases cognizable by the Sandiganbayan, First Level

and Second Level courts,pre-trial is also mandatory (Sec. 1 R 118).
Sec. 2. Nature and purpose. The pre-trial is mandatory. The

court shall consider:
A pre-trial conference is likewise mandatory in both civil and

criminal cases under the Rules on Summary Procedure (Sec. 7, Sec.
14, 1991 Rule on Summary Procedure).
(a) The possibility of an amicable settlement or of a

submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
Referral to the Philippine Mediation Center
(c)
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. 202002, March 24, 2002; Administrative Circular No.
50-2005, April 26, 2005).
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;
How is pre-trial called?

Section 1. When conducted. After the last
pleading has been served and filed, it shall be
the duty of the plaintiff to promptly move ex
parte that the case be set for pre-trial. (5a,
R20)
(h) The advisability or necessity of suspending the

proceedings; and
(i)
In civil actions, after the last pleading has been filed (Reply or
Answer) the plaintiff is duty bound to move promptly and ex parte
that the case be set for pre-trial.
Such other matters as may aid in the prompt

disposition of the action. (1a, R20)
(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF

A SUBMISSION TO ALTERNATIVE MODES OF DISPUTE
RESOLUTION
The ex-parte motion to set case for pre-trial is to be made by the

plaintiff after the last pleading that has been served and filed (Sec.
1). 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
Remember that the policy of the law in civil cases is settlement to

save time and expense.
There was an article where it says that one of the best gauge of a
good lawyer is not that he has many cases, but that he knows how
to settle a case because he saves his client from a lot of trouble.
241

While a bad lawyer is one whose cases always end up in trial he

has many cases and he does not have the time anymore to study
each cases. So, he ends up inefficient.
(d) STIPULATION OF FACTS

Stipulation of facts means we can agree on some facts and there is
no need of proving them in court because we already agreed. Such
will hasten the trial because matters validly agreed upon can be
dispensed with (e.g., size of the land, improvements thereon,
stipulations, due execution of documents, etc.)
As a matter of fact, even Abraham Lincoln who was a lawyer and

became one of the best presidents of the United State, gave an
advice to lawyers: Discourage litigation. Persuade your neighbors
to compromise whenever you can. Point out to them how the
nominal winner is often a real loser in fees, expenses and waste of
time. As a peacemaker, the lawyer has a superior opportunity of
being a good man there will still be business enough. Meaning, if
you are a lawyer, you have a strong influence to convince your
client to settle the problem with his opponent. You do not have to
worry about losing fees for there are still cases to come. Even if you
will come out the winner in the case, you are still the loser in terms
of waste of time, money and effort.
Now, while the law encourages stipulation of facts, courts cannot

compel the parties to do stipulate facts under the threat of
dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO 160 SCRA 333
HELD: There is no law which compulsorily requires litigants to
stipulate at pre-trial on the facts and issues that may possibly crop
up in a particular case, upon pain of dismissal of such case. The
process of securing admissions whether of facts or evidence is
essentially voluntary, since stipulations of facts, like contracts, bind
the parties thereto who are not allowed to controvert statements
made therein.
of a submission to alternative modes of dispute resolution.

how to dispose of the case without passing to court, ba. This is
similar to voluntary arbitration in the Labor Code mas mabilis!.
Kung sa court yan, matatagalan pa yan. Example is a controversy in
the construction industry. Pagawa ka ng building. You quarrel with
your contractor whether the building is properly constructed or
not. That kind of dispute has to pass through arbitration like
contractors. They will be the one to judge because they are
experts in construction. So it is faster. Anong malay ng judges sa
engineering? So, yan ang tinatawag na alternative modes of
dispute resolution.
When the parties are unable to arrive at a stipulation of

agreed facts, the court must close the pre-trial and proceed
with the trial of the case.
(e) THE LIMITATION OF THE NUMBER
OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask,
Mr. Plaintiff, how many witnesses will you present? The plaintiff
will say that he will present one hundred witnesses. So the court
will start asking, Why so many? Will it be possible to limit the
number of witnesses from 100 to 15 or 10? Anyway, what one
witness will say will just be the same as what the other witness will
say.
Now, assuming that the parties cannot settle at the pre-trial stage,
does it mean to say that the pre-trial was a failure? NO, go to [b] to
[i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or
lessened/reduced to the most important and relevant ones.
That is allowed and that is part of the pre-trial because it will be

shortened if the number of witnesses will be reduced in number.
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE

PLEADINGS;
(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF

ISSUES TO A COMMISSIONER;
Take note that there is already a complaint and answer and yet
during the pre-trial, the parties can still amend their complaint or
answer. That means that amendments of pleadings are favored
even at this stage. Amendment is necessary which is favored by
the liberality principle, to adjudicate the case upon proper merits.
This refer to Rule 32 the title of which is Trial by Commissioners.

A commissioner is a person who may be appointed by a judge to
assist the court in determining certain issues.
EXAMPLE: Two people dealing with each other ended up suing
each other because according to plaintiff, You secured these
amounts from me and ito lang ang binayad mo. So, may utang ka
pa. But defendant said, No, no, no! Based on my record, overpaid
pa ako. That can happen where there has be confusion already on
the invoices and receipts. Now, if we will try this case in court it will
take time because you have to present to the judge every receipt,
every invoice. And these invoices may number by hundreds. And
what is worse is that the judge is not an accountant so he will have
a hard time reconciling these receipts and invoices.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC 21 SCRA 887

BAR PROBLEM: Suppose A sued B. After pre-trial, it was
determined that there was a necessity for amending the
complaint. It was amended. Is there a need for a new pre-trial
for the amended complaint?
ANS: Where a pre-trial has already been had, the fact that an
amended complaint is filed, does not mean the need for a new pretrial. Pre-trial is not mandatory. Exception to this is when the
parties agree to conduct another pre-trial.
242

Suppose the judge will say, Alright, since this is a matter of

accounting, I will appoint a CPA to assist me. You can choose
whoever this accountant or he may be appointed by this court.
Then you go to him and present all your documents. And then he
will now analyze and then submit to me his findings. Based on his
findings we will find out whether the defendant still owes the
plaintiff or there is no more utang.
(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE

PROCEEDINGS;
This means that the case will be suspended, nothing will happen in
the meantime. Hindi naman dismissed. The case will just be held
in abeyance.
EXAMPLE: Suppose the parties will say, Judge, so far we cannot
settle. But maybe if you will give us one or two months we will be
able to come up with a solution. We will meet once every three
days para mag-istorya. I think that is a good ground. In other
words, pwede pa silang mag-areglo, o sige! Because the law
encourages amicable settlement.
That is what you call, reference of issues to a commissioner. That

will shorten the proceedings because if the judge will go over the
documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring
landowners. Plaintiff says, Your fence has already encroached on
my property. Defendant answers, No, no, no. This is the
boundary. So bakbakan na naman kayo. The court will ask, Is it
true you encroached on his property? How will the court know
that? I think that is very technical. It is a geodetic engineer
surveyor to resolve the issue. He will plot the measurement and
then he will submit a sketch. Then we will find out if there is an
encroachment or not.
Q: Is there a provision in the Rules on the suspension of

proceedings in relation to what we are talking about now? What
are the possible grounds for suspending the proceedings in a civil
case?
A: Rule 20, Section 8 on suspension of actions.
Sec. 8. Suspension of actions. - The suspension
of actions shall be governed by the provisions
of the Civil Code. (n)
As far as the judge is concerned, he does not know anything about

description of the land, he is not a surveyor, not a geodetic
engineer. So it will be faster if a geodetic engineer surveyor will be
appointed. What do you call this surveyor? He is a commissioner.
Actually, Section 8 points to Article 2030 of the New Civil Code:

Art. 2030. Every civil action or proceeding
shall be suspended:
(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;
1.
Q: What do you mean by judgment on the pleadings? What do you

mean by summary judgment?
2.
A: That was already mentioned under Rule 17, Section 1. But we

will not take them up because they will be taken up when we reach
Rule 34 and 35. Judgment on the pleadings or summary judgment
are remedies or procedure devised under the Rules of court for the
speedy determination of a civil case. It is one way of speedily
terminating a civil case.
If willingness to discuss a possible

compromise is expressed by one or
both parties; or
If it appears that one of the parties,
before the commencement of the
action or proceeding, offered to discuss
a possible compromise but the other
party refused the offer.
The duration and terms of the suspension of

the civil action or proceeding and similar
matters shall be governed by such provisions
of the rules of court as the Supreme Court
shall promulgate. Said rules of court shall
likewise provide for the appointment and
duties of amicable compounders.
The court, during a pre-trial, is authorized to render a judgment on

the pleadings or a summary judgment if there is a ground. In the
same manner, the court may order the dismissal of the action
should a valid ground therefor be found to exist because it is
possible that based on the complaint, there is no ground to dismiss
but in the course of pre-trial, the plaintiff may admit something
which turns out to be a ground for dismissal.
So a civil action may be suspended if at any time one of the parties

offered to discuss a possible compromise because the policy of the
law is to have civil cases settled between the parties amicably. Let
the parties talk among themselves to come up with the possibility
of amicable settlement even if one of the parties refuse to accept
such an offer.
EXAMPLE: According to the plaintiff, the defendant borrowed

money from him three years ago and did not pay. But during the
pre-trial, defendant said, Actually, judge, hindi man yan three
years ago. That was thirty years ago! Plaintiff answered,
Actually, judge, totoo yan. So judge said, My golly, the action
has prescribed so I will order the dismissal. These things can come
out in the pre-trial.
(i) SUCH OTHER MATTERS AS MAY AID IN THE PROMPT

DISPOSITION OF THE ACTION.
That is very broad any other matter which will hasten the case.
Anything under the sun can fall under this.
243

PURPOSE OF A PRE-TRIAL
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 476 SCRA
395)
A review of Section 2 will show that the primary purpose of a pretrial is how to end the case immediately because of amicable
settlement. If the parties can settle, then there is no need to
proceed to trial. But if for valid or serious reason they cannot
settle, because the court can only encourage and not force a
settlement, then they shall proceed with the pre-trial to find out if
we can have the case tried speedily and decided immediately by
talking about other things like amending the pleadings, stipulation
of facts, admission of documents to avoid unnecessary proofs,
limitation in the number of witnesses. So if we cannot settle, we
can talk of other things to speedily terminate the case. Instead of
trying the case for two years, we can probably finish in six months.
ARCILLA vs. ARCILLA 138 SCRA 560

FACTS: There was a pre-trial conference on July 29, where all the
parties are notified through their lawyers pursuant to Section 3.
They appeared but somehow the pre-trial was terminated on July
29. The court decided to reset the pre-trial on Oct. 2. The parties
agreed. Normally, the procedure is, when that happens, there will
be another written notice. There should be another written notice
sent to the lawyers and parties.
In this case, no such written notice was issued. On Oct. 2, the
defendant did not appear. With that, he was declared to have lost
his rights to present his side. He was considered in default. He
questioned the order on the ground that he did not receive any
notice on the Oct. 2 pre-trial conference. Therefore, all subsequent
proceedings, including the judgment rendered against the
defendant were void. Is he correct?
DEVELOPMENT BANK vs. CA 169 SCRA 409

NOTE: This case penned by Justice Narvasa, is practically all about
pre-trial. It is actually the bible on pre-trial. And this is what
exactly Justice Narvasa said:
HELD: Everyone knows that a pre-trial in civil actions is
mandatory, and has been so since January 1, 1964 (effectivity of
the Revised Rules of Court). Yet to this day its place in the scheme
of things is not fully appreciated, and it receives but perfunctory
treatment in many courts [Meaning, it is only complied with for the
sake of compliance.] Some courts consider it a mere technicality,
serving no useful purpose save perhaps, occasionally to furnish
ground for non-suiting the plaintiff, or declaring a defendant in
default, or, wistfully, to bring about a compromise. The pre-trial
device is not thus put to full use. Hence it has failed in the main to
accomplish the chief objective for it: the simplification,
abbreviation and expedition of the trial, if not indeed its
dispensation. This is a great pity, because the objective is
attainable, and with not much difficulty, if the device were more
intelligently and extensively handled.
HELD: At first blush, petitioners aforesaid contention appears

very tenable, for indeed it is settled that a declaration of default, in
the absence of a notice of pre-trial constitutes denial of due
process. But a deeper examination of the pleadings and the record
of the case would show that petitioner was present during the pre
trial conference on July 29, 1975 when the lower court re-set the
pre-trial to October 2, 1975. On the said date, however, although
notified, both petitioner and his counsel did not appear, hence, the
declaration of default.
So when the lower court reset the pre-trial on Oct. 2, the
defendant although ratified VERBALLY earlier, he failed to appear
that is why he was penalized under Section 5. When the court
reset the pre-trial, he agreed. He already knew. Notification need
not be too technical. Despite the lack of a written notice, the
defendant was penalized in the ARCILLA case.
The Supreme Court noted the inability of trial judges to properly

apply and appreciate the value of Rule 18.
Sec. 3. Notice of pre-trial. The notice of pretrial shall be served on counsel, or on the
party who has no counsel. The counsel served
with such notice is charged with the duty of
notifying the party represented by him. (n)
Under the present rules the court cannot declare anymore an

answering defendant in default if he fails to appear during the pretrial conference despite due notice. The consequence of such nonappearance is that the plaintiff will be allowed to present ex-parte.
Sec. 4. Appearance of parties. It shall be the
duty of the parties and their counsel to
appear at the pre-trial. The non-appearance
of a party may be excused only if a valid
cause is shown therefor or if a representative
shall appear in his behalf fully authorized in
writing to enter into an amicable settlement,
to submit to alternative modes of dispute
resolution, and to enter into stipulations or
admissions of facts and of documents. (n)
This is in compliance with Rule 13. Notice should be served on

counsel or to the party who has no counsel. Under the PRIOR RULE,
the procedure was, there must be notice to lawyer and notice to
the party but NOW, to simplify the job of the court processor, the
rule is, notice to the counsel is now notice to the party.
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 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
244

There must be notice of pre-trial which will be issued after you

comply with Section 1. Then there will be a schedule. The notice
will be served upon the counsel or upon a party, assuming that he
is not represented by a lawyer. The counsel served with such notice
is charged with the duty of notifying the party represented by him.
A: No. The Board can pass a resolution naming the person who will
represent the corporation. So, the manager for example, can
appear in the pre-trial provided he is authorized through a board
resolution.
Again, the RULE is: Both the lawyer and the party should appear in
the pre-trial because the first purpose of pre-trial is the possibility
of an amicable settlement and the lawyer alone has no authority to
enter into an amicable settlement.
Appearance of parties and counsel:

And under Section 4, it shall be the duty of both the parties and
their counsel to appear at the trial. Meaning, the appearance of
the lawyer alone unless he is duly clothed with pre-trial authority
from his client.
Non- appearance of counsel or a party may be EXCUSED only if:

1)
2)
Section 3 says a counsel served with such notice is charged with

the duty of notifying the party represented by him. That is new
provision. The OLD LAW is, based on decided cases, aside from
notice to the lawyer, there must be another notice to the party. So
if you notify the lawyer but you did not send a separate notice to
the party and therefore the party did not appear, you cannot take
it against him. Under Rule 13, notice to lawyer is notice to party,
except in pre-trial, sabi ng SC. That is the old jurisprudence
OBSOLETE!
a valid cause is shown therefor and

A representative shall appear in his behalf fully authorized in
writing (e.g. SPA) to:
a. enter into an amicable settlement;
b. submit to alternative modes of dispute resolution; and
c. enter into stipulations or admissions of facts and of
documents.
Note: written authority must be in the form of a Special Power of

Attorney. If the party is a corporation the SPA must be supported
by a board resolution (Riano, 2007, p. 306)
Note: The mere presentation of such written authroity is not
sufficient, but must be complemented by a showing of valid cause
for the non-appearance of the party himsel.
But the PRESENT RULE is: Notice to lawyer is notice to party.

Q: Is it possible for a party who will not appear at a pre-trial but
his appearance is not necessary?
Q: If it is a corporation, what is that authority?

A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a
representative shall appear in his behalf duly authorized in writing
to enter into an amicable settlement, to submit to alternative
modes of dispute resolution, etc.
A: It is a board resolution because only the board of directors has

the authority to bind the corporation.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
Meaning, you can delegate somebody who has a written authority.

Sometimes it is the lawyer who is given the Power of Attorney
authorizing him to enter into an amicable settlement. Otherwise,
you will see in the next section what is the effect if you fail to
appear in a pre-trial.
Sec. 5. Effect of failure to appear. The failure

of the plaintiff to appear when so required
pursuant to the next preceding section shall
be cause for dismissal of the action. The
dismissal shall be with prejudice, unless
otherwise ordered by the court. A similar
failure on the part of the defendant shall be
cause to allow the plaintiff to present his
evidence ex parte and the court to render
judgment on the basis thereof. (2a, R20)
Q: Suppose one of the parties in the case is a CORPORATION. A

corporation cannot appear because it has no physical existence.
Who is authorized to appear in a pre-trial in order to enter into an
amicable settlement? Are the managers or vice-president,
authorized to appear in a pre-trial in behalf of the bank which is a
party to the case?
Q: What happens if it is the plaintiff who failed to appear in the

pre-trial?
A: NO! Even the president or the chairman of the board has no

power.
If the PLAINTIFF fails to appear, his case will be dismissed for not
appearing. And as a rule, the dismissal is with prejudice except
when the court orders otherwise. It has the same effect as Rule 17,
Section 3: Failure to appear during the trial for the presentation of
his evidence-in-chief. So, if the plaintiff fails to appear during the
trial when it is his turn to present his evidence, under Rule 17, his
case shall be dismissed and generally the dismissal is with
prejudice, or an adjudication upon the merits. (Res Adjudicata
applies).
Q: Who can bind a Corporation?

A: Only the Board of Directors has the authority to bind a
corporation.
Q: If there will be a pre-trial of a case involving one of the banks in
Manila but the case is in Davao, am I saying that everytime there is
a pre-trial all the members of the Board will fly to Davao to attend
the pre-trial and pass a resolution inside the courtroom?
245

The old rule was that the plaintiff will be declared non- suited.
NOW, it shall be a cause for dismissal of the action.
Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed

to present his evidence ex parte. Now, what is the REMEDY of the
defendant? Because if you look at Rule 9 on default, the proper
motion for the defendant in default is to file a motion to lift the
order of default on the ground of F.A.M.E. and that he has a
meritorious defense. Is that also the remedy for the defendant who
failed to appear in the pre-trial?
Q: Is there any difference between non-suited and dismissal of

action?
A: There is suppose to be a difference based on the case of
BA FINANCE CORP. vs. COURT OF APPEALS 224 SCRA 163
[OBSOLETE!]
A: NO, that is the case of

JUNGCO vs. CA 179 SCRA 213 [1989]
HELD: When the defendant moves to dismiss the case, then

you are also killing your counterclaim. If you are, the
defendant you should not move for the dismissal. You only
move to declare the plaintiff as non-suited because when the
plaintiff is non-suited, he is bared from proving his cause of
action but the case is not dismissed. Since the case is not
dismissed, it is like the plaintiff who is in default.
HELD: Under Rule 9 on default, if you are declared in default, you

only file a motion to lift the order of default and you have to allege
that you have a meritorious defense. But in Rule 18, when you file a
motion, it is a simply a motion for reconsideration where you will
state the reason why you failed to appear and ask that the order be
reconsidered and that the judgment be set aside.
Under Rule 18, there is no use to say that you have a meritorious
because you have already filed an answer. The defense is already
there. Unlike in defaulted defendant, the court has no idea what is
your answer kaya nga you must convince the court that you have a
meritorious defense.
It does not anymore apply because now, you can have the case
dismissed but your counterclaim is still alive. So, the ruling in BA
FINANCE CORP. is now OBSOLETE.
What is the remedy of the plaintiff in case of dismissal for his
failure to appear?
So a simple MOTION FOR RECONSIDERATION is sufficient.
Since the dismissal is with prejudice or an adjudication upon the

merits of the case, 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 dismissal is without
prejudice that appeal cannot be availed of (Sec. 1[g] R 41). Since
appeal is available, certiorari is not the remedy because the
application of a petition for certiorari under Rule 65 of the Rules is
conditioned upon the absence of appeal or any plain, speedy and
adequate remedy (Sec. 1 R 65).
Appeal not available

The order of the court allowing the plaintiff to present evidence exparte does not dispose of the case with finality. The order is
therefore, merely interlocutory hence, not appealable. Under Sec.
1 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.
Effect of failure of the defendant to appear
Q: Assuming that the plaintiff is already presenting evidence, and

the defendant filed a motion for reconsideration. The court
reconsidered and recalled the plaintiffs ex-parte presentation of
evidence. Do they have to go back to pre-trial.
Q: What happens if it is the defendant who failed to appear in the

pre-trial?
A: If it is the DEFENDANT who failed to appear, the law says, it shall
be a cause to allow the plaintiff to present his evidence ex-parte
and for the court to render judgment on the basis thereof.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)

EXCEPTION: YOUNG vs. CA, 204 SCRA 584
You will notice that if it is the defendant who failed to appear

under the old law, he will be considered as in default. NOW, the
word default is avoided. The non-appearance of defendant during
the pre-trial is not a ground to declare him in default. Instead the
rule says, it shall be a cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis
thereof. That is the same effect as the old rule.
General Rule: DEVELOPMENT BANK vs. CA 169 SCRA 409 [1989]
HELD: When a pre-trial is terminated, you do not go back to it.

The court shall let the plaintiff continue and just let the
defendant cross-examine the plaintiffs witnesses. As a
general rule a second pre-trial cannot be granted, the remedy
instead is to go to trial.
Q: Why is the new rules avoiding the word default?

A: Because, strictly you cannot really have the defendant declared
in default when he has filed an answer.
246

Exception: YOUNG vs. COURT OF APPEALS 204 SCRA 584

[1991]
court, instead of reading the pleadings and answer, only the

document where you condensed everything will be read. It
contains: Cause of action; defenses; issued to be tried; admitted
facts; facts you believe should be stipulated; the documents or
exhibits you would like to present; or who are the witnesses and
what are they going to testify, etc. Thats a summary of everything
that is going to happen from the beginning of the trial up to the
end.
HELD: The pre-trial stage is completed after a party had been

ordered non-suited and the complaint is dismissed or after
the court allows the plaintiff to present his evidence ex-parte.
The order lifting it does not revert the action to its pre-trial
stage, or authorize, much less, a second pre-trial UNLESS the
parties themselves had voluntarily agreed that the case be set
anew for pre-trial. Neither the Rules nor the doctrine bars the
parties from agreeing, after such lifting, to hold a pre-trial and
to effectively accomplish its objectives.
Importance of 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 presented and offered during the trial in support
of a partys 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)
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file
with the court and serve on the adverse
party, in such manner as shall ensure their
receipt thereof at least three (3) days before
the date of the pre-trial, their respective pretrial briefs which shall contain, among others:
Legal effect of representations and statements in the pre-trial

brief
(a) A statement of their willingness to enter

into amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereof;
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 R 129)
(b) A summary of admitted facts and

proposed stipulation of facts;
Effect of failure to file a pre-trial brief

Last paragraph, Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial conference. So, if it
is the PLAINTIFF who failed to file a pre-trial brief, his complaint
may be ordered dismissed. If it is the DEFENDANT who failed to file
a pre-trial brief, that would be a cause for the court to allow the
plaintiff to present his evidence ex-parte.
(c) The issues to be tried or resolved;

(d) The documents or exhibits to be
presented, stating the purpose thereof;
(e) A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners; and
The dismissal of the complaint for failure to file pre-trial brief is

discretionary on the part of the trial court (Ramos v. Spouses
Lavendia, GR 176706, October 8, 2008).
(f) The number and names of the witnesses,

and the substance of their respective
testimonies.
Q: Up to this point, let us try to summarize. What are the instances

where the PLAINTIFF may be penalized by the court with a
dismissal of his complaint?
Failure to file the pre-trial brief shall have the

same effect as failure to appear at the pretrial. (n)
A: In the following instances:
This is a new provision not found in the 1964 Rules. However, the
requirement of a pre-trial brief is not new because this was a
requirement in SC Circular No. 1-89 which was issued on January
19, 1989. The submission of pre-trial briefs by lawyers has been
required by that Circular. This circular is now incorporated.
Take note that at least three (3) days before the date of pre-trial
the parties lawyers should file pre-trial briefs to be furnished with
each other. In that brief, you summarize everything covered by
your pleadings. It contains cause of action, defenses, etc. The
1)
Where plaintiff fails to appear during the presentation of

his evidence-in-chief to prove his cause of action (Rule
17, Section 3);
2)
Failure to appear in the pre-trial conference (Rule 18,

Section 5);
3)
Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized

by the penalty that plaintiff be allowed to present his evidence ex
parte and judgment be rendered based purely on such evidence?
247

The judge should not allow the termination of pre-trial 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).
Sec. 7. Record of pre-trial. The proceedings in

the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue an
order which shall recite in detail the matters
taken up in the conference, the action taken
thereon, the amendments allowed to the
pleadings, and the agreements or admissions
made by the parties as to any of the matters
considered. Should the action proceed to
trial, the order shall explicitly define and limit
the issues to be tried. The contents of the
order shall control the subsequent course of
the action, unless modified before trial to
prevent manifest injustice. (5a, R20)
If all efforts to settle fail, the trail 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 R 23 and the answers to written interrogatories under
R 25 and the answers to request for admission by the adverse party
under R 26. He may also require the production of documents or
things requested by a party under R 27 and the results of the
physical and mental examination under R 28 (ibid).
A pre-trial conference although it is less formal than a trial, thats

why in most cases, pre-trial is not done in open court but inside the
chamber of the judge where the atmosphere is more relaxed
because you are going to talk about settlement, eh. However, do
not believe that that is just a decoration. That is an official
proceeding. Everything there is recorded. According to section 7,
after a pre-trial conference is terminated, the court will issue what
is known as pre-trial order. That is now expressly required by the
rules.
Principles involved in Compromise Agreements
Pre-Trial Order
The authority to compromise a litigation is not mandatorily

required to be in writing. The vital thing is that the authority was
made expressly. The authority to compromise if not in writing may
be established by evidence.
This order of the court is issued upon the termination of the pretrial. Under A.M. No. 03-109-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:
1)
2)
3)
Failure to file an answer under Rule 9 on Default;

Failure to appear in a pre-trial conference (Rule 18,
Section 5);
Failure to file a pre-trial brief (Rule 18, Section 6)
No termination of pre-trial for failure to settle
(a)
(b)
(c)
(d)
(e)
A statement of the nature of the case;

The matters taken up in the conference;
the action taken thereon;
the amendments allowed to the pleadings; and
the agreements or admissions made by the parties as to any
of the matters considered (Sec. 7) including testimonial and
documentary evidence. These admissions embodied in the
pre-trial order are binding upon the parties and conclusive
upon them (Heirs of Conahap v. Regana 458 SCRA 741).
(f) the issues involved, factual and legal;
(g) number of witnesses; and
(h) the dates of trial.
Compromise agreements entered into without authority are not

void but unenforceable and may be ratified (Lim Pin vs Liao Tan, GR
No. L-47740, July 20, 1982)
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 day
only, subject to the courts discretion during the trial on whether or
not to extend the examination for justifiable reasons. 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 R 32 (ibid).
Another important point to remember about the pre-trial order is

stated in the rule thus: Should the action proceed to trial, the
order shall explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest injustice.
The other exceptions are:
Questions are to be asked by the judge
1.
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 (ibid).
2.
248
issues impliedly included in the issues stated or inferable

therefrom by necessary implication (Velasco vs.
Apostol, GR No. 44588, May 9, 1989) and
amendment to conform to evidence under Rule 10 Sec.
5)

A party is deemed to have waived the delimitations in a pre-trial

order if he failed to object to the introduction of evidence on an
issue outside of the pre-trial order, as well as in cross-examining
the witness in regard to said evidence.
ground that there was no issue contained in the order on the

liability of the defendant. The only issue is whether plaintiff is
liable to the defendant. Naisahan ang plaintiff akala kasi niya ang
pre-trial order is not important.
It may be an ordinary sentence but the effect of that is terrible.
(Dean did not know how the case ended, but commented: The
plaintiff asked for the amendment of the pre-trial order because
this is a manifest injustice. Plaintiff is the one suing and how he is
to be held liable. Now, if I were the judge, I will really modify
because its unfair no! You are the one suing and now you end up
as a defendant. But I will stress to the plaintiff na huwag kang
tatanga-tanga sa pre-trial! [gago!])
Suppose here is the complaint and it is answered. Based on the

complaint and the answer, you can determine the issues based on
the admissions and denials in the answer. For instance, there are
five issues, they are to be stated in a pre-trial brief. During the pretrial conference, the court may reject other issues which are not
important with the agreement of the parties. Thus, there may be
only one real issue like whether or not the loan has been paid. The
court may then issue a pre-trial order containing such issue. The
defendant may have also several defenses in his answer. After the
pre-trial order is issued, such order should be followed. Forget the
complaint and the answer.
Now, an example of the last sentence of Section 7 UNLESS

modified before trial to prevent manifest injustice is the case of
SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order
does not recite the issue, it can still be proven. Under Section 5 of
Rule 10, even if an issue was not raised I n a pre-trial order and no
one objected to the issue raised, it can be tried and later the pretrial order can be amended to conform with issue/s raised.
In effect, the complaint and the answer has already been

superseded by the pre-trial order. This section in effect says that
the pre-trial order supersedes the pleadings.
Pre-Trial in civil and criminal cases compared:
That is why the case of DBP vs. CA, supra, where the Court through
Justice Narvasa, emphasized the importance of a pre-trial. The
Court noted that if there is a pre-trial order because the judge
followed Rule 18 religiously, during the trial the judge will not have
a hard time in determining what is the issue to be resolved. And
babasahin lang niya ay ang pre-trial order. Everything is to be
based there. Without the pre-trial order, you will still have to look
at the pleadings of both parties. The pre-trial order is a very
important piece of document.
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 R 18).
The PT in a criminal case is ordered by the court and no
motion to set case for pre-trial is required from either
party (Sec. R 118);
2.
The motion to set case for PT in a civil case is made after

the last pleading has been served and filed
but in a criminal case, the PT is ordered by the court
after arraignment and within 30 days from the date the
court acquires jurisdiction over the person of the
accused;
There was a case years ago, Plaintiff vs. Defendant. Banggaan ba.
In a vehicular collision, the plaintiff is claiming damages from the
defendant. His allegations naturally would point out that all fault
and negligence is caused by the defendant. As usual, when the
defendant files his answer, he is denying that. As a matter of fact,
he will claim that the one negligent is the plaintiff. Chances are,
since his vehicle was also damaged, the defendant will file a
counterclaim. So, pasahan yan!
3.
The PT in a civil case considers the possibility of an

amicable settlement as an important objective (Sec. 2 R
18)
but in a criminal case it does not generally consider such
possibility as a purpose of PT (Sec. 1 R 118);
What happened in the pre-trial conference is that, the lawyers

were asked to define the issues. The plaintiffs lawyer asked the
defendants lawyer to define the issues: (1.) Is the plaintiff liable
for actual damages on defendants counterclaim? (2.) Is the
plaintiff liable to the defendant on his counterclaim for exemplary
damages? (3.) Is plaintiff liable to the defendant on his
counterclaim for attorneys fees and expenses for the litigation?
4.
So, those were the issues. The plaintiffs lawyer, siguro hindi
nakikinig ba. Judge asked, O, do you agree panyeros? Yes, Okay.
When the pre-trial order was issued, those issues were contained.
Wheres the defendants liability to the plaintiff? Wala na! The
issue is whether or not the plaintiff is liable to the defendant.
During the trial, the plaintiff presented his evidence to prove the
defendants liability. The defendants lawyer objected on the
In a civil case, the agreements and admissions made are

not required to be signed by both the parties and their
counsels. Under the Rules, they are instead to be
contained in the record of PT and the PT order (Sec. 7 R.
18. However, A.M. No. 03-1-09-SC date 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 PT conference shall be reduced in writing and signed
249

by both the accused and counsel, otherwise, they cannot

be used against the accused (Sec. 2 R 118)
5.
The sanctions for non-appearance in a PT are imposed

upon the plaintiff and the defendant in a civil case (Sec. 4
R 18)
but in criminal cases, the sanctions are imposed upon
the counsel for the accused or the prosecutor (Sec. 3 R
118)
6.
A PT brief is specifically required to be submitted in a

civil case (Sec. 6) but not in a criminal case.
Preliminary Conference under the Revised Rules on Summary

Procedure
1)
Under the said rules, a preliminary conference shall be

held not later than 30 days after the last answer is filed.
Here, the rules on PT in ordinary cases shall apply except
when inconsistent with the rules on summary procedure
(Sec. 7, II);
2)
The failure of the plaintiff to appear in the conference

shall be cause for dismissal of the complaint and the
defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim. All
cross-claims shall be dismissed (ibid)
3)
Within 5 days from the termination of the conference,

the court shall issue an order stating the matters taken
up in the conference (Sec. 8 II)
Outline
Pre- Trial
A. If no Settlement is reached
The court will issue an order indicating the agreements made by
the parties; amendments to the pleadings; schedule of trial.
Trial will then follow
B. If there is an amicable settlement, the court will render a
judgment based on said compromise agreement.
C. If there is failure to appear
1. If plaintiff is absent, when so required to attend, the court may
dismiss the case.
2. If defendant is absent, the court may hear the evidence of the
plaintiff ex parte.
If evidence is insufficient to prove palintiff's cause of action or
defendant's counterclaim, the court rules in favor of either one or
dismisses the case.
250

KATARUNGANG PAMBARANGAY
RTC and MTC judges. Subject: Guidelines on the Katarungang

Pambarangay conciliation Procedure to prevent circumvention on
the Revised Katarungang Pambarangay Law.
For now, we will leave the rules on civil procedure. We will go to

another law which is also connected with the study on civil
procedure. This is the Barangay Conciliation Law. It is appropriate
to discuss what the law is all about because under Rule 18 on pretrial, you will notice it has emphasized that the primary purpose of
a pre-trial is the possibility of amicable settlement. That is usually
encouraged. No case may reach the trial stage without passing
through the Pre-trial Rule. We have to exhaust all avenues and
settlement.
We will summarize the law and discuss some important features.

Under the law, you cannot file a case against somebody without
attempting to settle matters before the barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION
LAW:
The law applies only when you are suing somebody who resides in
the same city or municipality where you reside. Or in the event of
different municipalities, they are adjacent. So when two towns are
near each other, you are suing somebody there, the law will apply.
Generally, when you (from Davao City) sue somebody from General
Santos City, the law is inapplicable because it is a different city.
There is a law known as the BARANGAY CONCILIATION LAW which

mandate that before an action can be filed by an individual
complainant against another individual defendant, both of them
are residing in the same city or municipality, there should be a prior
attempt to conciliate in the barangay level under the rules, the
barangay of the defendant. And if the action if filed without
observing that procedure, the action is dismissible.
The law will not apply if one of the parties in the dispute is a
juridical person i.e. corporation. It only applies to suits between
natural persons.
Suppose a case will be filed in court, according to the SC, the

plaintiff must allege in a complaint that before filing the case he
exerted or complied with the Baranagay Law. It is a condition
precedent. Normally, after you exhaust in the barangay level but is
not successful, the Barangay Chairman will issue a certification to
file an action. That should be stated in the complaint.
Under the law, it is the barangay where the defendant resides

which is the venue for conciliation. If the dispute arose in a
workplace or in school, the venue is the barangay where the
workplace or the school is located.
Q: If Im from Sasa and you are from Toril, but we are residing in
the same city, which barangay is the proper venue?
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY

(126 SCRA 217), the failure of a complaint to allege compliance
with the requirement of the barangay law is fatal. He must make an
allegation that before filing his complaint, he complied with the
barangay law. Otherwise, his complaint will be ordered dismissed.
A: Under the law, it is the barangay where the defendant resides,

unless the dispute arose in a workplace or in school.
If the dispute refers to REAL property, it is where the property is
situated. If the dispute refers to Real Property (e.g. land), and Im
from Matina, and you are from Sasa, but the case involves a land in
Toril, then the correct venue is the place where the land is situated
i.e. the barangay in Toril.
If the action is filed without observing that procedure, the action is

dismissible. But as clarified by the SC in many cases, among them
are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA
289) the defect is NOT JURISDICTIONAL. You do not say the court
has no jurisdiction.
When you say, both the parties reside in the same city or
municipality, what do you mean by RESIDENCE? The same
interpretation as laid down by the SC in
The ground for dismissal is more on PREMATURITY OF THE

ACTION. You can cite the new ground now as the condition
precedent required by law has not been observed. Actually, it will
also affect the cause of action- Based on decided cases, there must
be an allegation in the complaint that before filing a case, there has
been an attempt to undergo a conciliation in the barangay level.
GARCES vs. CA 162 SCRA 504

FACTS: Garces lives in Cavite but works in Malate. He rented an
apartment in Malate and stays there on weekends.
Now, this law used to be the Katarungang Pambarangay Law, PD

1508. However, it was superseded on January 1, 1992 by RA 7160,
otherwise known as the Local Government Code Of 1991 (LGC).
The Barangay Conciliation requirement is now embodied in RA
7160. The barangay requirement is found in Sections 399-422 and
also Section 515. It is around 25 sections of the law.
HELD: For purposes of the Barangay Law, Garces is a resident of

Malate. The word RESIDES refers to actual or physical residence,
not domicile.
In the case of
BEJER vs. CA 169 SCRA 566
To help you, the SC in 1993 issued Administrative Circular No. 1493 where the SC tried to condense the important requirements of
the law who are covered and who are not. It is addressed to all
FACTS: Andre lives in Laguna but has a house in Manila where

his children live.
251

ISSUE: Is Andre a residence of Manila?
captain cannot settle, the next step is the Lupong

Tagapamayapa. So, you cannot immediately issue a
certification to file action.
HELD: NO, because Andre is not a registered in the barangay

as a voter. Physical presence alone is not sufficient. So, the SC
added another qualification, that residence is determined by
membership in the barangay. Therefore, even if you are in
that area but you are not a member of the barangay, you are
not a resident thereof.
BUT the ruling in RAMOS seems to have been CHANGED already in

the light of the new Local Government Code. In the 1995 case of
DIU vs. CA 251 SCRA 472 [1995]
This is because the primary purpose of the law is to provide

the conciliation mechanism, as an alternative to litigations in
dispute settlement, to members of the corresponding
barangays who are actually residing therein. Residence alone,
without membership, in said barangays would not be an
accurate and reliable criterion, considering that such
residence may be actual but be merely temporary, transient
or categorized into other permutations as in the case of a
house guest or a sojourner on a visit of a day or two.
FACTS: What happened here is exactly similar to what happened to

the case of RAMOS. When the barangay captain could not effect a
settlement, he issued certificate to file action. That was
questioned. It was not referred to the Lupon. Therefore, it was
premature, citing Section 410-d of the LGC.
On the other hand, mere membership in a barangay, without

actual residence therein, should not suffice since absentee
membership would not subserve the avowed purpose of the
law for lack of the common bond and sense of belonging
generally fostered in members of an identified aggroupment.
While no pangkat was constituted, it is not denied that the parties

met at the office of the barangay chairman for possible settlement.
The efforts of the barangay chairman, however, proved futile as no
agreement was reached. Although no pangkat was formed, we
believe that there was substantial compliance with the law. It is
noteworthy that under Section 412 of the Local Government Code,
the confrontation before the lupon chairman OR the pangkat is
sufficient compliance with the pre-condition for filing the case in
court.
HELD: The SC cited a new section in the LGC which is Section 412
which seems to give the barangay captain the authority to issue a
certificate without necessarily referring anymore to the Lupon.
Q: Suppose the defendant will not show up everytime he is called.

A: That is now a ground for the barangay captain to issue a
certificate to file an action. The defendant cannot complain later
that there is non-compliance of the barangay law. The defendant
cannot use his own default to profit it. That was the ruling in SAN
MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA 704).
This is true notwithstanding the mandate of Section 410(b) of the

same law that the barangay chairman shall constitute a pangkat if
he fails in his mediation efforts. Section 410(b) should be construed
together with Section 412. On this score, it is significant that the
barangay chairman or punong barangay is himself the chairman of
the lupon under the Local Government Code.
Take note that the barangay cannot decide. It can only convince
the party to settle. A barangay court has no power to make
decisions. But if you agree to something and in case you failed to
comply with your agreement, that can be enforced by the
barangay. But actually, the decision came from you, and not from
the barangay court.
Anyway, if we look to the pangkat under the LGC, the chairman of

the lupon is also the barangay captain. So, either one or the other
will do. So, the case of DIU has effectively set aside the ruling in
RAMOS.
There are other interesting cases under the Barangay Law. In the
1989 case of
CANDIDO vs. MACAPAGAL 221 SCRA 328 [1993]

FACTS: Here, plaintiff Eltor files a case against defendants Jenny,
Gemma, and Jayce. Eltor and Jenny reside in Davao City. So they
(Eltor and Jenny) are covered by the law. But Gemma and Jayce
reside in General City. So there is no problem with Gemma and
Jayce because there is no need to effect conciliation. But how
about Jenny? Should the case be dismissed against Jenny if there
was no prior barangay conciliation between Jenny and Eltor?
RAMOS vs. CA 174 SCRA 690
FACTS: This case originated in barangay Lanang, Davao City.

The parties failed to agree before the barangay captain. He
tried to convince them to settle, but they refused to settle.
With that, the barangay captain issued a certificate to file an
action. So the case was filed in the RTC. The defendant
questioned the procedure.
HELD: NO. The fact that Eltor and Jenny reside in the same
municipality does not justify compulsory conciliation WHERE the
other defendants reside in different municipalities or cities.
HELD: The procedure is wrong. The case cannot be filed.

Under the Barangay Law which is now incorporated in 410-d
of the Local Government Code, the correct procedure for this
is, if the barangay captain cannot effect settlement, he should
throw the case to the Pangkat, the Lupon. If the barangay
So, it would seem na pag nahaluan na ng iba, you are not also
covered anymore. That seems to be the implication. That seems to
jive with another ruling of the SC on the issue of members of the
252

same family because under the law, if the plaintiff and defendant
are members of the same family, they cannot also file a case
against each other without conciliation. But if there is a stranger
included, the requirement will not apply.
NOTE: Only natural persons can undergo barangay conciliation.

5.
July 15, 1993

ADMINISTRATIVE CIRCULAR NO. 14-93
6.
Subject : Guidelines on the Katarungang Pambarangay

conciliation procedure to prevent circumvention of the Revised
Katarungang Pambarangay Law (Sections 399-422, chapter VII,
Title I, Book III, R.A. 7160, otherwise known as the Local
Government Code of 1991).
7.
8.
To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal

Trial Courts and Municipal Circuit Trial Courts
NOTE: Urgently. A good example in civil action is where the

action is coupled with a provisional remedy such as
preliminary injunction, attachment, replevin or support. Or,
actions which may be barred by the statute of limitations.
The Revised Katarungang Pambarangay Law under 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 Lupon Tagapamayapa but also in the procedure to be
observed in the settlement of disputes within the authority of the
Lupon.
a.)
In order that the laudable purpose of the law may not subverted
and its effectiveness undermined by indiscriminate, improper
and/or premature issuance of certifications to file actions in court
by the Lupon or Pangkat Secretaries, attested by the
Lupon/Pangkat Chairmen, respectively, the following guidelines
are hereby issued for the information of trial court judges in cases
brought before them coming from the Barangays:
9.
I. All disputes are subject to Barangay conciliation pursuant to the

Revised Katarungang Pambarangay Law (formerly P.D. 1508,
repealed and now replaced by Secs. 399-422, Chapter VII, Title I,
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known
as the Local Government Code of 1991), and prior recourse
thereto is a pre-condition before filing a complaint in court or any
government offices, EXCEPT in the following disputes:
1.
2.
3.
4.
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;
Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or a
fine over five thousand pesos (P5,000.00);
Offenses where there is no private offended party;
Disputes where urgent legal action is necessary to
prevent injustice from being committed or further
continued, specifically the following:
10.
11.
Where one party is the government, or any subdivision

or instrumentality thereof;
Where one party is a public officer or employee, and
the dispute relates to the performance of his official
functions;
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;
Any complaint by or against corporations, partnerships
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);
Criminal cases where accused is under police

custody or detention (See Sec. 412 (b)(1), Revised
Katarungang Pambarangay Law);
b.) Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a
person illegally deprived of his liberty or one
acting in his behalf;
c.) Actions coupled with provisional remedies such as
preliminary injunction, attachment, delivery of
personal property and support during the
pendency of the action; and
d.) Actions which may be barred by the Statute of
Limitations.
Any class of disputes which the President may
determine in the interest of justice or upon the
recommendation of the Secretary of Justice;
Where the dispute arises from the Comprehensive
Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657);
Labor disputes or controversies arising from employeremployee relations (Montoya vs. Escayo, et al., 171
SCRA 442; Art. 226, Labor Code, as amended, which
grants original and exclusive jurisdiction over
conciliation and mediation of disputes, grievances or
problems to certain offices of the Department of Labor
and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the
conciliation there is in the Department of Labor.
12.
Actions to annul judgment upon a compromise, which

may be filed directly in court (See Sanchez vs. Tupaz,
158 SCRA 459).
Under the provisions of R.A. 7160 on Katarungang Pambarangay

conciliation, as implemented by the Katarungang Pambarangay
Rules and Regulations promulgated by the Secretary of Justice,
253

the certification for filing a complaint in court or any government

office shall be issued by Barangay authorities only upon
compliance with the following requirements:
1)
2)
III. All complaints and/or informations filed or raffled to your

sala/branch of the Regional Trial Court, Metropolitan Trial Court
or Municipal Trial Court shall be carefully read and scrutinized to
determine if there has been compliance with prior Barangay
conciliation procedure under the Revised Katarungang
Pambarangay Law and its Implementing Rules and Regulations, as
a pre-condition to judicial action, particularly whether the
certification to file action attached to the records of the case
comply with the requirements hereinabove enumerated in par. II;
Issued by the Lupon Secretary and attested by the

Lupon Chairman (Punong Barangay), certifying that a
confrontation of the parties has taken place and that a
conciliation or settlement has been reached, but the
same has been subsequently repudiated (Sec. 412,
Revised Katarungang Pambarangay Law; Sec. 2[h], Rule
III, Katarungang Pambarangay Rules);
IV. 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)
Issued by the Pangkat Secretary and attested by the

Pangkat Chairman, certifying that:
1)
a)
b)
a confrontation of the parties took place but no

conciliation/settlement has been reached (Sec.
4[f], Rule III, Katarungang Pambarangay Rules; or
that no personal confrontation took place before
the Pangkat through no fault of the complainant
(Sec. 4[f], Rule III, Katarungang Pambarangay
Rules).
1)
2)
2)
Issued by the Punong Barangay, as requested

by the proper party on the ground of failure
of settlement where the dispute involves
members of the same indigenous cultural
community, which shall be settled in
accordance with the customs and traditions
of that particular cultural community, or
where one or more of the parties to the
aforesaid dispute belong to the minority and
the parties mutually agreed to submit their
dispute to the indigenous system of amicable
settlement, and there has been no
settlement as certified by the datu or tribal
leader or elder to the Punong Barangay of the
place of settlement (Secs. 1, 4, & 5, Rule IX,
Katarungang Pambarangay Rules); and
If mediation or conciliation efforts before the
Punong Barangay proved unsuccessful, there
having been no agreement to arbitrate (Sec.
410 [b], Revised Rule Katarungang
Pambarangay Lay; Sec. 1, c, (1), Rule III,
Katarungang Pambarangay Rules), or where
the respondent fails to appear at the
mediation proceeding before the Punong
Barangay (3rd par. Sec. 8, a, Rule VI,
Katarungang Pambarangay Rules), the
Punong Barangay shall not cause the issuance
of this stage of a certification to file action,
because it is now mandatory for him to
constitute the Pangkat before whom
mediation, conciliation, or arbitration
proceedings shall be held.
may be dismissed upon motion of defendant/s, not for

lack of jurisdiction of the court but for failure to state
a cause of action or prematurity (Royales vs. IAC, 127
SCRA 470; Gonzales vs. 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 propio to the appropriate
Barangay authority, applying by analogy Sec. 408[g],
2nd par., of the Revised Katarungang Pambarangay
Law which reads as follows:
"The Court in which non-criminal cases not falling within the

authority of the Lupon under this Code are filed may at any
time before trial, motu proprio refer the case to the Lupon
concerned for amicable settlement.
Strict observance of these guidelines is enjoined. This
Administrative Circular shall be effective immediately.
Manila, Philippines. July 15, 1993.
Sgd.) ANDRES R. NARVASA
Chief Justice
254

Rule 19
Q: What if Rucel does not file a third party complaint

against Rayda? What can Rayda do to be able to join the
case?
INTERVENTION
A: Rayda can, with leave of court, INTERVENE under Rule

19. The initiative should come from her.
Q: Define intervention.
A: An INTERVENTION is proceeding in a suit or action in which a
third person, not a party to the case, is permitted by the court to
make himself a party to the case. (33 C.J.S. 447)
So an intervention is related to a third-party complaint. It is a

process by which a stranger or a third party is included in a case,
but with the difference that in a third-party complaint, it is the
party who brought you in. While in intervention, the initiative
comes from the third person and he is known as the intervenor.
And the process of entering is called intervention. And take note
that a person cannot simply intervene for the sake of intervening.
There must be a legal ground for intervention which can be found
in Section 1:
Intervention is a legal proceeding by which a person who is not a

party to the action is permitted by the court to become a party by
intervening in a pending action after meeting the conditions and
requirements set by the Rules of Court. This third person who
intervened is one who is not originally impleaded in the action
(First Philippine Holdings Corporation v. Sandiganbayan 253 SCRA
30)
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 distribution or other disposition of
property in the custody of the court or of an
officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall
consider whether or not the intervention will
unduly delay or prejudice the adjudication of the
rights of the original parties, and whether or not
the intervenor's rights may be fully protected in a
separate proceeding. (2[a], [b]a, R12)
It is a remedy by which a third party, not originally impleaded in the

proceedings, becomes a litigant therein to enable him to protect or
preserve a right or interest which may be affected by such
proceeding (Office of the Ombudsman v. Samaniego GR 175573,
Sept. 11, 2008).
Intervention is never an independent proceeding but is ancillary
and supplemental to an existing litigation. Its purpose is to enable a
stranger to an action to become a party to protect his interest
(Santiago Land Development Corporation v. CA 267 SCRA 79).
An intervention cannot alter the nature of the action and the issues
already joined (Castro v. David 100 Phil. 454).
Q: What are the grounds for intervention?

Intervention in an action is neither compulsory nor mandatory
but only optional and permissive (Mabayo Farms Inc. v. CA GR
140058 August 1, 2002)Hence, the court has full measure of
discretion in permitting or disallowing the same (Yau v. Manila
Banking Corporation GR 126731 July 11, 2002).
A: The following are the GROUNDS for intervention:

1)
2)
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. CA GR No. 115624 Feb. 25, 1999).
3)
4)
The intervenor has a legal interest on the matter under

litigation;
The intervenor has a legal interest in the success of either
of the parties;
The intervenor has a legal interest against both; or
The Intervenor is so situated as to be adversely affected
by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
Intervention is never an independent proceeding but is ancillary

and supplemental to an existing litigation. Hence, the final
dismissal of the principal action results in the denial of the pending
motion for intervention.
EXAMPLE: Leo creditor; Rucel debtor; Rayda surety. Rucel and

Rayda signed a promissory note in favor of Leo.
Q: Leo sues Rucel and Rayda. What pleading should
Rucel file to protect herself?
Exception:
A: Rucel should file a CROSS-CLAIM against her co-party

Rayda.
The intervenor in a pending case is entitled to be heard like any

other party. A claim in intervention that seeks affirmative relief
prevents a plaintiff from taking a voluntary dismissal of the main
action. Where a complaint in intervention was filed before
plaintiff's action had been expressly dismissed, the intervenor's
complaint was not subject to dismissal on the ground that no
action was pending, since dismissal of plaintiff's action did not
Q: Leo sues only Rucel. What is the remedy of Rucel to

protect herself?
A: Rucel should file a THIRD-PARTY COMPLAINT against
Rayda.
255

affect the rights of the intervenor or affect the dismissal of

intervenor's complaint. (Metro Bank vs. Presiding Judge, RTC
Manila Branch 39, GR No. 89909, Sept. 21, 1990)
A: NO. They cannot intervene the legal interest they are claiming is
contingent, expectant there is no assurance that your father will
die ahead of you. The interest referred to by the law is an interest
that is direct immediate, actual existing interest as distinguished
from expectant, inchoate or contingent interest. (Garcia vs. David,
67 Phil. 279)
Denial of motion to intervene does not constitute res judicata.

Remedy of the intervenor is to file a separate action. (Asuncion vs.
Pineda GR No. L-47924, July 31, 1989)
How do you distinguish the second example from the first case? In
the first case, the father is dead and you inherit the property.
Technically, the property belongs to you. So the right of the heirs
over the property litigated by the administrator is not expectant or
inchoate.
Factors to be considered by the court:

1.
2.
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.
Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN

THE SUCCESS OF EITHER OF THE PARTIES;
First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON

THE MATTER UNDER LITIGATION;
So you are interested in the plaintiff winning or the defendant

winning.
Meaning of legal interest

EXAMPLE: In an action filed by the creditor against the surety only
to recover the debt of the principal debtor without impleading the
principal debtor. The principal debtor may intervene if he would
like to join forces with the surety.
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, when the title to the
property has been already declared void by final judgment,
intervention will not revive or reinstate the movants title derived
from the title declared void (Firestone Ceramics v. CA 313 SCRA
522; Office of the Ombudsman v. Samaniego).
Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST

BOTH PARTIES;
I am not interested in the victory of either the plaintiff or the
defendant. I am interested with my victory against both. So it
becomes a three-cornered fight.
The assignee of the property who assumed payment of whatever

amount may be finally adjudged against the assignor may intervene
in a proceeding involving the execution of the property pursuant to
a judgment (Robles v. Timario 6 SCRA 380).
EXAMPLE: Steven Spielberg filed a case against Ridley Scott who

has the right to possess the property and then here I come I will
intervene. I am the one, not both of you, who has the right over the
property. Wala kayong lahat!!! Mga ungas!! So bakbakan na iyon. I
have a better right against both of you.
In an action for foreclosure of mortgage, the alleged owners of the

land sought to be foreclosed may intervene (Roxas v. Dinglasan 28
SCRA 430).
Fourth Ground: THE INTERVENOR IS SO SITUATED AS TO BE

ADVERSELY AFFECTED BY A DISTRIBUTION OR OTHER
DISPOSITION OF PROPERTY IN THE CUSTODY OF THE COURT OR
OF AN OFFICER THEREOF.
EXAMPLE #1: Tarzan died survived by his children. Chita is

appointed as administrator of his estate. Chita filed a case to
recover a piece of land which he believes belongs to the deceased.
The children would like to intervene.
EXAMPLE: Sonny secures a writ of preliminary attachment against

Gemma but the property attached preliminarily happens to be my
property. So I can move to intervene because I am adversely
affected by the distribution.
Q: Do children have the legal personality or the right to intervene

involving the estate of Tarzan?
A: YES, because they have a legal interest in the matter in litigation.
If the case will succeed they will be richer. The property will go to
them. (Dais vs. CFI of Capiz, 51 Phil. 396)
Can you not file a third-party claim if your property is wrongfully

attached? YES you can, but that is not the only remedy. The law
allows the third person to file an intervention in the main action.
EXAMPLE #2: Suppose Victor filed a case against Ping to recover a

piece of land. Victors children (Mary, Rose and Ador) would like to
intervene contending that when their father (Victor) would die in
the future, their inheritance is affected.
INTERVENTION, NOT A RIGHT
Q: Is the intervention a right or a privilege?
Q: Can the children of Victor intervene?
256

A: NO. It is discretionary. A motion for intervention must be filed

by the intervenor. And under Section 1, the court may or may not
grant the motion - the court shall consider
a.)
b.)
property in the custody of the court or of an officer

thereof (Sec.1)
After rendition of judgment, a motion to intervene is barred, even
if the judgment itself recognizes the right of the movant. The
remedy of the movant is to file a separate action.
whether or not the intervention will unduly delay or

prejudice the adjudication of the rights of the original
parties and
whether or not, the intervenors rights maybe fully
protected in a separate proceeding.
Exceptions:
For example, the case between the original parties is about to end,
the trial of the case is about to end and at that point, you will have
to intervene. If you intervene, we will start all over again. So, it
will be dilatory. But even if you will not be allowed to intervene,
the court may say that you can file your case in the future. You can
file a separate action later against the parties.
1)
with respect to indispensable parties, intervention may

be allowed even on appeal (Falcasantos vs. Falcasantos
GR No. L-4627, May 13, 1952;
2)
when the intervenor is the Republic (Lim vs. Pacquing,

GR No. 115044, Jan. 27, 1995);
3)
Intervention may be allowed after judgment where

necessary to protect some interest which cannot
otherwise be protected; and for the purpose of
preserving the intervenor's right to appeal (Herrera vol. 1
p. 847)
4)
Class suit (Section 12, Rule 3)
WHEN AND HOW TO FILE

Sec. 2. Time to intervene. The motion to
intervene may be filed at any time before
rendition of judgment by the trial court. A
copy of the pleading-in-intervention shall be
attached to the motion and served on the
original parties.
Rule 3, Sec. 12. Class suit. - When the subject matter of

the controversy is one of common or general interest to
many persons so numerous that it is impracticable to
join all as parties, a number of them which the court
finds to be sufficiently numerous and representative as
to fully protect the interests of all concerned may sue
or defend for the benefit of all. Any party in interest
shall have the right to intervene to protect his
individual interest. (12a)
Sec.
3.
Pleadings-in-intervention.
The
intervenor shall file a complaint-inintervention if he asserts a claim against
either or all of the original parties, or an
answer-in-intervention if he unites with the
defending party in resisting a claim against
the latter. (2[c]a, R12)
Q: When do you move to intervene?

A: Under Section 2, at any time before rendition of judgment by the
trial court. So, you cannot intervene when there is already a
decision.
Requisites for Intervention
That the intervention must not unduly delay or prejudice the

adjudication of the rights of the original parties and that the
intevenors rights may not be fully protected in a separate
proceeding (Mabayo Farms Inc., v. CA GR 140058 August 1, 2002).
The following requisites must be complied with before a non-party

may intervene in a pending action:
(a)
There must be a motion for intervention filed before

rendition of judgment by the trial court. A motion is
necessary because leave of court is required before a
person may be allowed to intervene (Section 1);
And when you file a motion to intervene, the pleading-inintervention that you want to file should already be included. Now,
under the old procedure, first, you file a motion to intervene. After
filing your motion and your motion is granted, then you file your
pleading in intervention. So, motion first before pleading. That was
the old rule.
(b) The movant must show in his motion that he has a (1)
legal interest in
a)
b)
c)
d)
Did you notice that last sentence? Any party in

interest shall have the right to intervene. So, in
other words, in a class suit and you are already
included, law says, you have the right to intervene
in so far as your individual interest is concerned.
So, that would be another instance where
intervention seems to be a matter of right rather
than a matter of discretion.
matter in litigation,
the success of either of the parties in the action, or
against both parties, or
That the movant is so situated as to be adversely
affected by a distribution or other disposition of
NOW, the copy of the pleading and intervention shall be attached

to the motion and served on the original parties. That is also in
consonance with Rule 15 Section 9 on motions in general.
257

Rule 15, Sec. 9. Motion for leave. - A motion

for leave to file a pleading or motion shall be
accompanied by the pleading or motion
sought to be admitted. (n)
Sec. 3. Answer to amended complaint. Where

the plaintiff files an amended complaint as a
matter of right, the defendant shall answer
the same within fifteen (l5) days after being
served with a copy thereof.
So, in other words, when you file a motion for leave, the pleading
must already be included in your motion. An example is a motion
to intervene where it must already be accompanied by the
pleading-in-intervention.
Where its filing is not a matter of right, the

defendant shall answer the amended
complaint within ten (10) days from notice of
the order admitting the same. An answer
earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
Now, what are these PLEADINGS-IN-INTERVENTION? Its there in

Section 3. Its either a complaint-in-intervention or an answer-inintervention. So it DEPENDS:
If you are joining forces with the plaintiff, or you are asserting a
claim against both, then you file a COMPLAINT-IN-INTERVENTION.
If you are uniting with the defendant to resist the plaintiff, you file
an ANSWER-IN-INTERVENTION.
This Rule shall apply to the answer to an

amended counterclaim, amended crossclaim, amended third (fourth, etc.) party
complaint, and amended complaint-inintervention. (3a)
So, these are among the pleadings recognized by the rules. Lets
try to go back to the basic. What are the types of pleadings
allowed by the rules of court? Rule 6, Section 2:
Q: What is the period to answer an amended complaint-inintervention?

A: It is either 10 or 15 days just like answering an ordinary
amended complaint.
Sec. 2. Pleadings allowed. The claims of a

party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.)
party
complaint,
or
complaint-inintervention.
DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION

There is a case between Pches and John. Tommy intervened while
the case is going on. Suppose the case was dismissed either by the
court or the plaintiff withdrew it. Can the intervention proceed
independently? Can it proceed when there is no more main action?
In the case of
xxxxx
Actually a complaint-in-intervention is the pleading referred to now
in Rule 19.
BIG COUNTRY RANCH CORP. vs. CA 227 SCRA 161 [1993]

Sec. 4. Answer to complaint-in-intervention.
The answer to the complaint-in -intervention
shall be filed within fifteen (15) days from
notice of the order admitting the same,
(2[d]a, R12)
HELD: An intervention is merely collateral or accessory or ancillary

to the principal action and not an independent proceeding. It is an
interlocutory proceeding dependent on or subsidiary to the case
between the original parties. Where the main action ceases to
exist, there is no pending proceeding wherein the intervention
maybe based. If the main action dies, the intervention dies also.
In other words, just like any other complaint, it should be answered

within 15 days. A complaint-in-intervention must be answered
within fifteen (15) days from notice of the order admitting the
same, unless a different period is fixed by the court. So you have 15
days.
BUT there is another answer given by the SC in the case of:

METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC
OF MANILA 189 SCRA 820 [1990]
HELD: When the intervention is granted and the main action is
withdrawn or dismissed, it would be unfair to dismiss the
intervention. So the intervention proceeds notwithstanding the
withdrawal of the main action.
Remedies from denial of intervention:

1)
2)
3)
appeal, or
mandamus, if there is grave abuse of discretion
certiorari, if there is improper granting of intervention.
The simple fact that the trial court properly dismissed plaintiffs
action does not require dismissal of the action of the intervenor. An
intervenor has the right to claim the benefit of the original suit and
to prosecute it to judgment. The right cannot be defeated by
dismissal of the suit by the plaintiff. Where a complaint in
intervention was filed before plaintiffs action had been expressly
Q: Now, suppose there is an amendment of a complaint-inintervention. What is the period to answer?

A: Let us go back to Rule 11, Section 3:
258

dismissed, the intervenors complaint was .not subject to dismissal

on the ground that no action was pending.
As such, he stands exactly in the shoes of his predecessor in

interest, the original defendant, and is bound by the proceedings
had in the case before the property was transferred to him. He is a
proper, but not an indispensable, party as he would, in any event,
have been bound by the judgment against his predecessor.
So how do you reconcile these conflicting decisions now? Well, I

think it DEPENDS on the ground for intervention. To illustrate:
EXAMPLE #1: The creditor files a case against the surety. The
debtor intervened. So, he is joining the surety. Then creditor
withdrew the complaint. What will happen to the intervention?
The intervention cannot go on because the intervention is actually
to assist the surety. So, if the complaint against the surety is
dismissed, wala ng utang. There is no more basis to assist the
surety. (BIG COUNTRY ruling)
How then can it legally be possible for a transferee pendente lite

to still intervene when, for all intents and purposes, the law already
considers him joined or substituted in the pending action,
commencing at the exact moment when the transfer of interest is
perfected between the original party-transferor and the transferee
pendente lite? And this even if the transferee is not formally joined
as a party in the action. Because the transferee pendente lite
simply takes the place of the transferor, he is barred from
presenting a new or different claim.
EXAMPLE #2: But suppose Pches filed a case against John claiming
that she has a superior right to posses a piece of land. And then
Tommy will intervene also claiming that he has the superior right to
possess. So the three of them will fight. And then later, Pches will
withdraw the case. What will happen to Tommys intervention?
The dismissal of the main action does not mean that Tommy
cannot prove his right against John. The intervention should
continue. Bahala ka kung nag-withdraw ka, basta ako I will
continue. I will claim that the land is mine. (METROBANK ruling)
On the other hand, one who intervenes has a choice not to

intervene and thus not to be concluded by any judgment that may
be rendered between the original parties to the action.
Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no need
for you to intervene because you are already a (necessary) party.
On the other hand, an INTERVENOR can decide whether or not he
wants to join to be bound by the judgment of the main case. So that
is the ruling in SANTIAGO LAND.
It depends on what kind of intervention you are talking about.

Now, an intervention may be confused with another procedure
under Rule 3, Section 19 on Transfer of Interest. For example:
When a property under litigation is sold and there is a notice of lis
pendens, the person who buys is called the TRANSFEREE PENDENTE
LITE. In the case of
There is another case on the issue again of intervention. The case

of
SANTIAGO LAND CORP. vs. CA January 28, 1997
FACTS: There was a motion to intervene and the trial court denied
it.
FIRST PHILIPPINE HOLDINGS CORP. vs. SB 253 SCRA 30 [Feb 1,

1996]
FACTS: Rose brought an action against a bank to enforce an alleged

right to redeem certain real properties foreclosed by the bank.
With notice of the pending civil action, Leo purchased from the
bank one of the properties subject of the litigation. So Leo is now
called the TRANSFEREE PENDENTE LITE. And later, Leo filed a
motion to intervene. Rose opposed Leos motion for intervention.
ISSUE: Is a writ of MANDAMUS available to compel a trial court to

grant a motion for intervention?
HELD: As provided under Rule 19, Section 1, intervention shall be
allowed in the exercise of discretion by a court. Ordinarily,
mandamus will not prosper to compel a discretionary act. But
where there is gross abuse of discretion, manifest injustice or
palpable excess of authority equivalent to denial of a settled right
to which petitioner is entitled, and there is no other plain, speedy
and adequate remedy, the writ shall issue.
ISSUE: Does a transferee pendente lite of the property in litigation

have a right to intervene?
HELD: The SC here made a distinction between the rights of a
transferee pendente lite (Rule 3, Section 19) and an intervenor
(Rule 19).
Procedure for Intervention
The purpose of Rule 19 on intervention is to enable a stranger to

an action to become a party to protect his interest and for the
court incidentally to settle all conflicting claims. On the other hand,
the purpose of Rule 3, Section 19 is to provide for the substitution
of the transferee pendente lite precisely because he is not a
stranger but a successor-in-interest of the transferor, who is a party
to the action. As such, a transferees title to the property is subject
to the incidents and results of the pending litigation and is in no
better position than the vendor in whose shoes he now stands.
1)
259
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 pleading seek to unite with the defending
party in resisting a claim against the latter, he shall
file an answer-in-intervention (Sec. 3);

2)
The motion and the pleading shall be served upon

the original parties;
3)
The answer to the complaint-in-intervention shall

be filed within 15 days from notice of the order
admitting the same, unless a different period is
fixed by the courts (Sec. 4).
Rule 20
CALENDAR OF CASES
Section 1. Calendar of cases. The clerk of

court, under the direct supervision of the
judge, shall keep a calendar of cases for pretrial, for trial, those whose trials were
adjourned or postponed, and those with
motions to set for hearing. Preference shall
be given to habeas corpus cases, election
cases, special civil actions, and those so
required by law. (1[a], R22)
The clerk of court has a calendar of cases cases for pre-trial, trial
cases, which were postponed. When will be the continuation of
the trial? May scheduling yan eh. Of course, the law says,
preference shall be given to certain type of cases like habeas
corpus. It is very important because that involves the freedom of
an individual.
Sec. 2. Assignment of cases. The assignment
of cases to the different branches of a court
shall be done exclusively by raffle. The
assignment shall be done in open session of
which adequate notice shall be given so as to
afford interested parties the opportunity to
be present. (7a, R22)
For example, in Davao City, there are more than 10 branches.
Now, when you file a case, how will we determine whether the
case will be assigned to Judge Malcampo or Judge Quitain or Judge
Torres? Raffle yan. Niraraffle yan. I remember the ordinary
raffling day in Davao City is every Tuesday. They raffle the cases.
All representatives of the different branches are there and then
they have a system of raffling. Which case will go to you? Para
hindi ka makapili. So, that is how cases are assigned.
So, pag-raffle ng kaso, there should be adequate notice to the
parties. This is one section where the clerk of court had a hard time
applying it. Do you know why?
Because the present practice, pag-file mo ng kaso, they will
immediately raffle it and then i-assign na sa branch. The branch
clerk of court will now issue the summons. Meaning, by the time it
reaches the defendant, naka-assign na. Suppose the defendant will
object, When that raffling was done, I was not notified. I will
question the raffle because it would seem that the requirement is
that the plaintiff and the defendant should be notified of the
raffling. Yaan!
260

Rule 21
b) the court of the place where the deposition is

to be taken;
c) the officer or body authorized by law to do so
in
connection
with
investigations
conducted by said officer or body; or
d) any Justice of the Supreme Court or of the
Court of Appeals in any case or
investigation
pending
within
the
Philippines.
SUBPOENA
Section 1. Subpoena and subpoena duces

tecum. Subpoena is a process directed to a
person requiring him to attend and to testify
at the hearing or the trial of an action, or at
any investigation conducted by competent
authority, or for the taking of his deposition.
It may also require him to bring with him any
books, documents, or other things under his
control, in which case it is called a subpoena
duces tecum. (1a, R23)
When application for a subpoena to a prisoner

is made, the judge or officer shall examine and
study carefully such application to determine
whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is
confined in any penal institution shall be
brought outside the said penal institution for
appearance or attendance in any court unless
authorized by the Supreme Court. (2a, R23)
Rule 21 applies to both civil and criminal cases.

Q: What are the types of subpoena under the law?
A: The following are the types of subpoena:
1)
2)
Subpoena Ad Testificandum; and

Subpoena Duces Tecum
Q: Who are authorized to issue subpoena?

A: The following:
Now, the first one is commonly known as subpoena for short. So,
when you say that refers to the first one.
1.
The court before whom the witness is required to attend

the most common is the court where the court is pending;
2.
The place where the deposition is to be taken we will

discuss that when we reach Rule 23;
3.
The officer or body authorized by law to do so in

connection with investigations conducted by said officer or
body Now, even administrative bodies or quasi-judicial
officers are authorized to issue subpoena like the Labor
Arbiter in connection with investigation conducted by said
officer or body;
4.
Any Justice of the Supreme Court or of the Court of

Appeals in any case or investigation pending within the
Philippines So, practically any justice can issue a
subpoena to attend a particular case although it is not
before the SC. They are empowered to issue a subpoena.
Q: Define Subpoena Ad Testificandum.

A: SUBPOENA AD TESTIFICANDUM is a process directed to a person
requiring him to attend and to testify at the hearing or trial of an
action, or at any investigation conducted by competent authority,
or for the taking of his deposition. So you are required to appear
there and testify in court.
Q: Define Subpoena Duces Tecum.
A: SUBPOENA DUCES TECUM is a process directed to a person
where it requires him to bring with him any books, documents or
other things under his control. So, in other words we are more
interested in his documents, which are in his custody. Whereas in
ad testificandum, we are more interested in his oral testimony.
Q: Can you subpoena a PRISONER to appear in court?
Now, take note that a subpoena is a process which requires a

witness to testify not only during the hearing or the trial of his case
but also any investigation conducted by competent authority like
quasi-judicial bodies such as the Labor Arbiter or the Senate Blue
Ribbon Committee. Now, under Section 1, you may wonder what
do you mean by subpoena for the taking of his deposition? Thats
because that will clearer when we reach Rule 23. So we will just
reserve talking deposition when we reach Rule 23.
A: YES, but the law says that the judge should be very careful to
find out whether it is issued for a valid purpose because there is a
risk. If a prisoner is going to be brought out in jail because he has
to testify in a case, that might be an occasion for him to escape.
So, the court should be very careful about that. The court should
have to find out whether it is necessary.
And take note, No person sentenced to death, reclusion perpetua,
or life imprisonment and who is confined in a penal institution shall
be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court.
This is something new.
Sec. 2. By whom issued. The subpoena may be

issued by:
a) the court before whom the witness is
required to attend;
261

I think this last paragraph is from the case of former Congressman

Nicanor de Guzman of Nueva Ecija who was convicted of gun
running. He was sentenced in Muntinlupa then one day, because of
subpoena to testify in his hometown, he was escorted in his
hometown to attend the fiesta and then I think he just used that as
an excuse to attend the fiesta. And that was attacked by the media
why was he allowed to leave the national penitentiary when he is
sentenced to reclusion perpetua? So, this paragraph now appears.
You cannot remove him from any National Penal institution
without authority of the SC.
2)
3)
First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE

AND OPPRESSIVE
Well, the best example is if it violates Section 3 it does not
contain a reasonable description of the book, documents or things
demanded.
Sec. 3. Form and contents. A subpoena shall

state the name of the court and the title of
the action or investigation, shall be directed
to the person whose attendance is required,
and in the case of a subpoena duces tecum, it
shall also contain a reasonable description of
the books, documents or things demanded
which must appear to the court prima facie
relevant. (3a, R23)
EXAMPLE: I will subpoena a business man to a business company,

Mr. Manager you are required to bring to court all your ledgers, all
your receipts, and all your documents from 1990 to the present.
My golly! That would involve how many truck loads. Meaning, it
would involve bringing to court thousand of documents. So, it
becomes unreasonable and oppressive. The subpoena duces tecum
should be more specific.
Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS
DOES NOT APPEAR
Now, actually that is simple. You are required to testify on this

date or time or you are required to bring with you the following
documents, which was described in the subpoena duces tecum.
Meaning, there appears to be no connection between the

documents which are being sought, and the issues in the case.
Example, in a collection case, you were required to bring your birth
certificate, marriage contract, etc. My golly! Anong pakialam ng
mga niyan sa collection case?
Now, can a subpoena be quashed? To quash means to have it

dissolved. What are the grounds to quash a subpoena? Section 4:
Sec. 4. Quashing a subpoena. The court may
quash a subpoena duces tecum upon motion
promptly made and, in any event, at or
before the time specified therein if it is
unreasonable and oppressive, or the
relevancy of the books, documents or things
does not appear, or if the person in whose
behalf the subpoena is issued fails to advance
the reasonable cost of the production
thereof.
Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS

ISSUED FAILS TO ADVANCE THE REASONABLE PRODUCTION
THEREOF
This is a very common situation:
A bank received his subpoena duces tecum, Present to court the
ledger of the return check of somebody. And this check was issued
and send to you four years ago. Do you know the inconvenience
when a company is asked to bring to court documents especially
yung matagal na? Practically, the company has to assign the
employee out of his usual job. He is pulled out from his usual job
to look for these in the archives. Isa-isahin niya iyan. Maybe it will
take him two or three days to locate and then he will be required
to go to court where you will miss your work because you will be in
court and yet the person who demand the subpoena duces tecum
has never been bothered to pay service fee for that. Meaning,
dapat magbayad siya reasonable cost.
The court may quash a subpoena ad

testificandum on the ground that the witness
is not bound thereby. In either case, the
subpoena may be quashed on the ground
that the witness fees and kilometrage
allowed by these Rules were not tendered
when the subpoena was served. (4a, R23)
GROUNDS TO QUASH SUBPOENA DUCES TECUM
Of course, the law does not say how much. Sa gobyerno nga
papirma ka lang diyan ng isang pirma bayad ka na ng service fee.
How much more in the private sector, where you are requiring a
company to look for a document? He is the one to look and then
somebody will go to court. He will not be reporting for job and yet
you have not even offered anything to the company. We
experienced this many times subpoena duces tecum, and then the
manager of the bank will say, do we have to comply with these?
Well, you do not want to comply. Puwede man.
To quash there must be motion filed.

Q: What are the grounds for quashing a subpoena duces tecum?
A: The following are the grounds:
1)
The relevancy of the books, things or documents does not

appear;
the person in whose behalf the subpoena is issued fails to
advance the reasonable cost for the production thereof.
If the subpoena duces tecum is unreasonable and

oppressive;
262

When you received the subpoena duces tecum, may bayad ba? Did
the person offer any amount for the trouble in looking for these
documents and in going to court? Wala. Okay, we will move to
quash. In other words, sometimes companies and banks just
waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan.
But it is a ground for quashing a subpoena.
issued by or on behalf of the Republic of the

Philippines or an officer or agency thereof,
the tender need not be made. The service
must be made so as to allow the witness a
reasonable time for preparation and travel to
the place of attendance. If the subpoena is
duces tecum, the reasonable cost of
producing the books, documents or things
demanded shall also be tendered. (6a, R23)
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM

Q: How do you quash a subpoena ad testificandum?
The first sentence says, Service of the subpoena shall be made in

the same manner as personal or substituted service of summons.
That is a new provision. So, the mode of service of summons,
personal or substituted is also the manner of serving subpoena. So
there is now a substituted service of subpoena. You can leave it to
the wife.
A: The court may quash a subpoena ad testificandum on the

ground that the witness is not bound thereby.
Q: When is a witness not bound by a subpoena?
A: The best answer is Section 10 of this rule if your residence is
more than 100 kilometers from the place of trial. So, you cannot
subpoena someone from Cebu to come to Davao because that is
more than 100 kms. But suppose you are willing to pay for his
transportation? Never mind, even if he is willing to pay the
transportation. Pag ayaw niya, wala kang magagawa because it is
more than 100 kms.
1.
2.
3.
In either case, the subpoena may be quashed for failure to tender

the witness fees and kilometrage allowed by the Rules.
4.
In either case, whether subpoena duces tecum or ad testificandum,

the last sentence says, You must also tender the witness fees and
kilometrage allowed by this rules. Ano ba yang witness fees? I
think thats Rule 141, yun bang pamasahe. There is a computation
there.
How much you have to pay the witness for his
transportation and witness fees. That is different from the
reasonable cost and reproduction in the first paragraph. So, these
are the grounds for questioning a subpoena.
The original shall be exhibited and a copy thereof be

delivered to the person on whom it is served;
tendering to him the fees for one day's attendance or
kilometrage allowed by the Rules; except that, when a
subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender
need not be made;
the service must be made so as to allow the witness a
reasonable time for preparation and travel to the place
of attendance; and
if the subpoena is duces mecum, the reasonable cost of
producing the books, documents, or things demanded
shall also be tendered.
Under the old rule, it says there, the subpoena shall be served
personally to the witness. There is no such thing as substituted
service of subpoena because in most cases, when you subpoena
somebody, you go to the house, the witness is not there but the
wife is there. So sabihin mo, Ibigay mo na lang sa husband mo
ito. That is substituted service of subpoena. You must serve it
personally to the witness. There is no such thing as substituted
service of subpoena under the prior rule.
Sec. 5. Subpoena for depositions. Proof of

service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for
the issuance of subpoenas for the persons
named in said notice by the clerk of the court
of the place in which the deposition is to be
taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person
without an order of the court. (5a, R23)
But NOW, the rule has changed because Section 6 is very clear: It
shall be made in the same manner as personal or substituted
service of summons. Alright.
And take note that You exhibit it to the witness. Then bayaran mo
yong kanyang pamasahe. You must serve the subpoena with a
reasonable time to me to allow him to travel. Its very unbecoming
that the witness be serve a subpoena today and he is suppose to
testify tomorrow. Suppose he has other commitments, bigyan mo
siya ng time. And of course, as we discussed earlier, the reasonable
cost of producing the books, documents or things demanded shall
also be rendered.
Now, lets us skip Section 5 for the meantime because that is

deposition.
Sec. 6. Service. Service of a subpoena shall be
made in the same manner as personal or
substituted service of summons. The original
shall be exhibited and a copy thereof
delivered to the person on whom it is served,
tendering to him the fees for one days
attendance and the kilometrage allowed by
these Rules, except that, when a subpoena is
Sec. 7. Personal appearance in court. A person

present in court before a judicial officer may
be required to testify as if he were in
attendance upon a subpoena issued by such
court or officer. (10, R23)
263

GENERAL RULE: You cannot be compelled to testify if you have

not been served with a subpoena.
Q: What are the consequences if the witness refuses to appear

after he was subpoenaed
EXCEPTION: Section 7 a person present in court before a judicial

officer maybe required to testify as if he is under subpoena.
A: The following:
1)
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig
eh. Audience lang siya. And then the lawyer will say, Our first
witness is Mr. Pogi. Sabi niya Uy, uy, wala koy labot diri. I was
not under subpoena. NO, You can be compelled because you are
present in court. Any person present inside the courtroom can be
compelled to testify as if he is under subpoena.
2)
3)
You can ask the court to issue a warrant for his arrest
and to make him pay the cost of such warrant and
seizure, if the court should determine that his
disobedience was willful and without just cause. (Section
Thats what you call a warrant to arrest a recalcitrant
witness.
Declare him in contempt of court for failure to obey the
subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
So, if Mr. Pogi believes he will be called and ayaw niya, huwag
siyang sumipot sa court. Huwag kang magtingin-tingin doon. It
happened several times. There was an instance I wanted to call a
witness several times to surprise him. If I will have him subpoena,
baka makabantay. Alam din niya. And then Ill talk to him. O
punta ka bukas ha? Sigurado ha. In other words, Ill have to trick
him into going into courtroom and then once inside, my first
witness is that guy. Wala kang magawa. Because any person
present in court can be compelled to testify because if I will have
him subpoena, he will be forewarn. So I do not want to forewarn
him.
Sec. 10. Exceptions. The provisions of sections

8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred
(100) kilometers from his residence to the
place where he is to testify by the ordinary
course of travel, or to a detention prisoner if
no permission of the court in which his case is
pending was obtained. (9a, R23)
Provisions regarding the compelling of attendance (Sec. 8) and

contempt (Sec. 9) do not apply where:
FAILURE TO APPEAR; CONSEQUENCES
1.
Q: How do you compel a witness to attend? Meaning, a witness

was subpoena and he did not show up.
What are the
consequences of defying a subpoena?
the witness resides more than 100 kilometers from his

residence to the place where he is to testify by the ordinary
course of travel (Viatory right).
Note: This refers only to civil and not to criminal cases
(Ganorga vs. Quitain GR No. 891, July 21, 1977)
A: The consequences are found in Sections 8 and 9.

Sec. 8. Compelling attendance. In case of
failure of a witness to attend, the court or
judge issuing the subpoena, upon proof of
the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of
the province, or his deputy, to arrest the
witness and bring him before the court or
officer where his attendance is required, and
the cost of such warrant and seizure of such
witness shall be paid by the witness if the
court issuing it shall determine that his
failure to answer the subpoena was willful
and without just excuse. (11, R23)
2.
Permission of the court in which the detention prisoner's

case is pending was not obtained.
Although, this 100-km distance does not apply if it is a criminal case

where the accused would like to seek the compulsory process
issued to secure the attendance of witnesses in his behalf because
that is a superior right.
That is how the SC interpreted it in the case of PEOPLE vs.
MONTEJO (21 SCRA 722 [1965]), reiterated in GENORGA vs.
QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation
applies only to civil cases, but not to criminal cases, especially if the
person to be subpoenaed is a defense witness because of the
constitutional right of the accused which is a right which cannot be
curtailed by the Rules of Court.
Sec. 9. Contempt. Failure by any person

without adequate cause to obey a subpoena
served upon him shall be deemed a contempt
of the court from which the subpoena is
issued. If the subpoena was not issued by a
court, the disobedience thereto shall be
punished in accordance with the applicable
law or Rule. (12a, R23)
SUMMONS vs. SUBPOENA

Q: Distinguish SUBPOENA from SUMMONS.
1)
264
SUBPOENA is directed to a witness; whereas

SUMMONS is directed to a defendant in a civil case;

2)
In SUBPOENA, the witness is directed to appear in

court or to bring documents; whereas
In SUMMONS, the defendant is informed that a complaint is
filed against him and he must file a responsive pleading
within the period otherwise, judgment can be rendered;
3)
In SUBPOENA, the witness will be declared in

contempt or his attendance can be compelled by the
issuance of a warrant for his arrest; whereas
In SUMMONS, a judgment in default will be rendered against
the defendant who fails to comply.
4)
SUBPOENA applicable to both criminal and civil

case; whereas
SUMMONS applies only to civil cases.
5)
In SUBPOENA, there is a 100-km limitation of its

enforceability; whereas
In SUMMONS, there is no distance limitation.
265

Rule 22
COMPUTATION OF TIME
For example: A motion to dismiss is filed on the 7th day (instead of

filing an answer). Then after several weeks, the court denied the
motion to dismiss and he received the order of denial.
Section 1. How to compute time. In computing

any period of time prescribed or allowed by
these Rules, or by order of the court, or by
any applicable statute, the day of the act or
event from which the designated period of
time begins to run is to be excluded and the
date of performance included. If the last day
of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the
place where the court sits, the time shall not
run until the next working day. (n)
Q: So how many days more to go?

A: Meron pa siyang eight (8) days to go. But the minimum
guaranteed is five (5) days under Rule 12 and 16.
Now, what is the meaning of the last sentence The day of the act
that cause the interruption shall be excluded in the computation of
the period. Lets try to illustrate that:
FACTS:
January 31 defendant is served with summons
February 8 defendant files a motion to dismiss
This is what is known as EXCLUDE THE FIRST AND INCLUDE THE

LAST DAY rule. That is how it has always been done even before
this new rule. However, it was not expressed, there is nothing in
the previous rules mentioning that rule but that was really the rule
followed.
Q: What is the deadline for defendant to file his answer?
So, if you received the summons today, for example and you have
15 days to answer, you start counting 1(one) tomorrow, not today
because the day of the act or event from which the designated
period of time begins to run is to be excluded.
A: The 15-day period started to run on January 31. From January

31 to February 8, he consumed 8 days. From February 8 to 15, not
counted because interrupted man by motion to dismiss. Then, on
February 15, he received the order denying his motion to dismiss.
Q: Now what happens if the last day to answer falls on a Saturday,

Sunday or a legal holiday?
So the remaining balance of the 15-day period starts to run again.

And 15 minus 8 is equal to 7. Therefore, February 15 + 7 = February
22. That is how you arrive at your (WRONG) answer.
February 15 defendant receives order denying motion

to dismiss
A: The last day is automatically the next working day.
Now, Im sure if you ask majority of lawyers and judges with that
kind of problem, they will give the same answer. But the answer is
WRONG. Why?
So at least, the new rules now embody the rule of computation of

time.
Sec. 2. Effect of interruption. Should an act be
done which effectively interrupts the running
of the period, the allowable period after such
interruption shall start to run on the day after
notice of the cessation of the cause thereof.
Q: How many days did he consume from January 31 to February 8?

A: Hindi naman 8 days eh. 7 days lang because the filing of the
motion to dismiss has interrupted.
So when you file the motion to dismiss on February 8, interrupted
na. So February 8 is not counted. So you consumed 7 days only.
Yaaaannnn.
The day of the act that caused the

interruption shall be excluded in the
computation of the period. (n)
Therefore, if he consumed 7 days, he has 8 days pa from February

15 to file. So the deadline is February 23. Yaaaannnn! Because the
law says: The day of the act that caused the interruption shall be
excluded in the computation of the period. The act that caused
the interruption is the filing of the motion to dismiss and it was
filed on February 8. So, February 8 is already excluded in the
computation of the period.
EXAMPLE: The defendant received the summons and the complaint

on a certain day. He has 15 days to file his answer. An example of
an act in between which effectively interrupts the running of the
15-day period is when the defendant files a motion to dismiss
instead of filing an answer, or a motion for a bill of particulars. In
which case, the running of the 15-day period stops. And since it is
stopped, you cannot declare the defendant in default.
Take note of that, that is a very important point because it may

mean the answer is filed on time or out of time. Kahit sa appeal,
applicable din ito. Thats why that provision may sound very
innocent but it is a very important provision.
Q: Now, when will it start to run again?

A: It will start to run again when the defendant receives a court
order denying his motion to dismiss.
266

Any extension of time to file the required pleading should be

counted from the expiration of the period regardless of the fact
that the said due date is a Saturday, Sunday or legal holiday. (AM
No. 00-2-14-SC, as explained in Luz vs. National Amnesty
Commission, GR No. 1597028, Sept. 24, 2004).
267

Rule 23
DEPOSITIONS PENDING ACTION
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 pre-trial conference all issues of law and fact and that
they intend to raise at the trial, except such as may involve
privileged or impeaching matters (Tinio v. Manzano 307 SCRA 460;
Mercader v. DBP 332 SCRA 82).
A civil case is not a case of technicalities. The rules do not want

surprises in civil cases. You lay your cards on the table. You do not
keep your opponent searching in the dark and that principle is
manifested in so many rules.
Example: when a defendant resorts to a specific denial, he is
obliged not only to deny the allegations in the complaint but also
the facts that are denied. It is not fair to state that my version is
false, without stating your version. And if you do not make specific
denial, there is a general denial, an implied admission.
Note: Modes of discovery are intended to be cumulative and not

alternative nor mutually exclusive.
Discovery is not mandatory but failure to avail carries sanctions in
Rules 25 and 26.
You cannot also deliberately confuse the defendant by making

ambiguous ultimate facts in the complaint to confuse him. He has
the right to clarify the allegation by motion for bill of particulars.
BAR QUESTION: How do you distinguish Bill of Particulars from

Modes of Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to clarify
vague statements of ultimate facts, but it is not an instrument to
compel the other party to reveal evidentiary facts. The Modes of
Discovery are intended to compel the other party to reveal his
evidence and evidentiary facts.
There is also the rule that objections or defenses not pleaded in the
motion to dismiss or in an answer are generally waived. So, if you
do not invoke the defense because you want to surprise the
plaintiff, you will be the one who will be surprised because the
courts will not allow you. There is no such thing as surprise defense
because under Rule 9, defenses not raised are deemed waived.
These provisions of the rules indicate the principle: LAY YOUR
CARDS ON THE TABLE.
Duty of the court in relation to the modes of discovery

The modes of discovery are considered by the SC 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).
BUT there is still an element of surprise whether you like it or not

because Im obliged to state my cause of action or defense but Im
not obliged to state the facts supporting that defense because the
rules even say, evidentiary matters should not be alleged in the
pleading but is only proved in the trial.
A motion for bill of particulars is not a vehicle to fish for evidentiary
facts. So, in that sense there is still an element of surprise you do
not know my evidence until the trial or pre-trial.
Q: But if you want to avoid any surprise, is there a way of knowing
then?
There are actually five (5) Modes of Discovery:
A: YES. The correct remedy is to apply the modes of discovery.
1.
Meaning of discovery
2.
3.
4.
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. (Riano 2007, p. 310)
5.
As contemplated in the Rules, the device may be used by all the

parties to the case.
DEPOSITIONS (a) pending action (Rule 23) and (b) before

action or pending appeal (Rule 24);
WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
PRODUCTION OR INSPECTION OF DOCUMENTS AND
THINGS (Rule 27); and
PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule
28)
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has two
(2) types deposition pending action (Rule 23) and depositions
before action or pending appeal (Rule 24). But actually Rule 24 is
not new because that is Rule 134 (Perpetuation of Testimony).
Purpose of discovery
The modes of discovery are designed to serve as an additional
device aside from a pre-trial, 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
EXAMPLE: You are my opponent and I know you have 2 witnesses,

A and B. Now, of course, if A and B will testify, how will they
268

testify, that I do not know. But I want to know exactly what they
will say during the trial, including you.
deposition there is cross--examination, there is a confrontation as if

he is already testifying in court.
Q: How do I apply Rule 23?
Affidavits are not admissible in evidence except in cases governed

by the Rule on Summary Procedure or in ordinary cases subject to
cross-examination.
A: I will take your deposition. Meaning, I will take your testimony in

advance by compelling you to appear before someone whom we
call a Deposition Officer the judge, or any judge, or even a notary
public - who can administer oath. And then before him, I will be
asking now questions and you have to answer under oath. Your
answers will then be recorded including that of your witnesses.
Depositions are intended as a means to compel disclosure of facts

resting in the knowledge of a party or other person, which are
relevant in a suit/proceeding.
Classification of Depositions
Therefore, during the trial, when you or your witnesses will testify,
there is no more surprise testimony that you can give me because I
already heard you in advance. You cannot contradict your answer.
This is what you call deposition taking.
1.
2.
3.
Now, if I can do that to you, you can also do that to me. The
defendant can also use that against the plaintiff.
Q: How do you define deposition?
Depositions on oral examination and depisitions upon

written interrogatories;
depositions de bene esse - those taken for purposes of a
pending action (R 23); and
Depositions in perpetua rei memoriam - those taken to
perpetuate evidence for purposes of an anticipated action
or further proceedings in a case on appeal (R 24)
Section 1. Depositions pending action, when
may be taken. By leave of court after
jurisdiction has been obtained over any
defendant or over property which is the
subject of the action, or without such leave
after an answer has been served, the
testimony of any person, whether a party or
not, may be taken, at the instance of any
party, by deposition upon oral examination
or written interrogatories. The attendance of
witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions
shall be taken only in accordance with these
Rules. The deposition of a person confined in
prison may be taken only by leave of court on
such terms as the court prescribes. (1a, R24)
A: DEPOSITION is the written testimony of a witness given in the

course of a judicial proceeding, in advance of the trial or hearing,
upon oral examination or in response to written interrogatories,
and where an opportunity is given for cross-examination. (16 Am.
Jur. 699)
The Rules of Court and jurisprudence do not restrict a deposition to
the sole function of being a mode of discovery before trial. Under
certain conditions for certain limited purposes, it may be taken
even after trial has commenced and may be used without the
deponent being actually called to the witness stand.
Depositions may be used for the trial or for the hearing of a motion
or an interlocutory proceeding as provided in Section 4, Rule 23.
(Jonathan Landoil International Co., Inc. vs. Sps Mangudadatu, GR
No. 155010, August 16, 2004).
Deposition-taking under Section 1 presupposes that there is a

pending civil case, thus, the title is depositions pending action.
There is an existing civil case and I would like to take the deposition
of certain people.
When I take the deposition of somebody, my opponent has the

right to cross-examine the same witness. So practically, its a dress
rehearsal for the trial when I ask questions, my opponent can ask
questions also. The questioning of the witnesses is done the way it
is done during the trial. The witness of the opponent has to
undergo the same procedure in the rules of evidence. That is
Section 3:
Q: When there is a pending action, is it necessary that leave of

court or permission should be sought for deposition to be allowed?
A: The rule is, it DEPENDS if there is already an answer or no
answer:
Sec. 3. Examination and cross-examination.

Examination and cross-examination of
deponents may proceed as permitted at the
trial under sections 3 to 18 of Rule 132. (3a,
R24)
A. With leave of court

1.
after jurisdiction has been obtained over any defendant

or over the property which is the subject of the action but
before an answer has been filed.
Q: Distinguish a deposition from an affidavit.

Reason: Leave of court is necessary because the issues are not yet
joined and the disputed facts are not yet clear.
A: Affidavit is also a sworn statement of a witness but the

statement is taken ex-- parte (no cross--examination). But in
2.
269
Deposition of a person confined in prison.

The deposition upon oral examination is more popular because it is

just like how you question a witness in court: Questions and
answers, then it is recorded. And then later on, the other counsel
would ask his questions and answer. Deposition upon written
interrogatories should not be confused with Rule 25 because the
former is governed by Rule 23. Although they use the same words.
B. Without leave of Court

After answer and deponent is not confined in prison.
In one case, petitioners contend that they have not yet served an
answer to respondents because the answers that they have filed
were made ex abundanti cautela. In other words, they do not
consider the answers they filed in court and served on respondents
as answers contemplated under the Rules of Court on the ground
that same were filed ex abundanti cautela. They contend that since
they had not yet filed an answer, any deposition must be made
with leave of court.
Now, as we shall see, there must be a deposition officer and under

the law, even a notary public is qualified to act as deposition officer
because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule
119, Sections 12,13 and 15.
The court found the contention untenable and ruled:
Q: Suppose I would like to take the deposition of Ms. A before a

notary public whose office is located along San Pedro Street. How
can I force Ms. A to go to the office of that notary public? Can I
force her?
We find petitioners contention to be untenable. Ex

abundanti cautela means out of abundant caution or
to be on the safe side. An answer ex abundanti cautela
does not make their answers less 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 GR No. 136051, June 8, 2006)
A: If Ms. A is in court, the court can force you by subpoena. But I

can also compel Ms. A to attend this questioning for the purpose of
deposition. Section 1 says, the attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21.
Rule 21, Section 1. Subpoena and subpoena
duces tecum. Subpoena is a process directed
to a person requiring him to attend and to
testify at the hearing or the trial of an action,
or at any investigation conducted by
competent authority, or for the taking of his
deposition. It may also require him to bring
with him any books, documents, or other
things under his control, in which case it is
called a subpoena duces tecum. (1a, R23)
Q: Whose deposition can you take?

A: The law says, you can take the testimony of any person whether
a party or not at the instance of any party.
PROBLEM: Your case is in Davao but your witness is in Cebu. You

asked your witness to come here in Davao to help you and you are
even willing to shoulder her transportation, but she refuses.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions
of his witnesses? Yes, including Mr. As deposition. I can also take
the deposition of my own witnesses, even my own deposition. At
least, before I die, nakuha na yung testimony ko. So I can take the
deposition of anybody in the world. Thats why the law says, the
testimony of any person whether a party or not may be taken at the
instance of any party. And of course, Mr. A can also do what I was
allowed to do.
Q: Can you ask the court in Davao to issue a subpoena compelling

such witness to come here and
testify even if the distance is
more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to
Cebu and get a deposition officer and take her deposition.
Q: When you take deposition of this person, what do you call him?
Q: How can I compel her to go to the office of the notary public in
Cebu for the purpose of the deposition?
A: The accurate term is that, he is called DEPONENT. Some

people call him witness.
A: You can get a subpoena from the Cebu court and that is allowed
under Rule 21, Section 2 [b] and under Rule 21, Section 5:
Q: What are the modes of deposition taking?

A: Under the law, there are two (2) recognized modes:
1)
2)
Rule 21, Sec. 2. By whom issued. The

subpoena may be issued by:
Deposition upon oral examination; and

Deposition upon written interrogatories
xxxxx
270

b) the court of the place where the

deposition is to be taken;
event of further proceedings in the said court and EVEN during the
process of execution of a final and executory judgment.
xxxxx
Meaning, deposition taking is even allowed as part of the execution

where the trial is already terminated. This is called with another
name in Rule 39 on execution, satisfaction or effects of judgments.
(c.f. Rule 39, Sections 36, 37 and 38)
Sec. 5. Subpoena for depositions. Proof of

service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for
the issuance of subpoenas for the persons
named in said notice by the clerk of the court
of the place in which the deposition is to be
taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person
without an order of the court. (5a, R23)
What can be the subject matter of deposition taking? Section 2:

Sec. 2. Scope of examination. Unless
otherwise ordered by the court as provided
by section 16 or 18 of this Rule, the deponent
may be examined regarding any matter, not
privileged, which is relevant to the subject of
the pending action, whether relating to the
claim or defense of any other party, including
the existence, description, nature, custody,
condition, and location of any books,
documents, or other tangible things and the
identity and location of persons having
knowledge of relevant facts. (2, R24)
In other words, I will send the notice to my opponent, I am going

to take the deposition of my witness in Cebu. And based on that
notice, I will go to Cebu and ask the clerk of court of the RTC of
Cebu to issue a subpoena based on the notice to take deposition on
the Davao case. And under the Rules, the Cebu RTC has to issue a
subpoena even if the case is not pending in that (Cebu) court
because this is only deposition. Kaya nga under Rule 21, Section 2
[b], a subpoena may be issued by the court of the place where the
deposition is to be taken.
Q: When you take the deposition of a deponent what can you

ask? What matters may be inquired into?
A: The law says, the deponent may be examined regarding any
matter whether related to the claim or defense of a party.
There was an instance before, a Manila lawyer who wanted to take

the deposition of somebody in Davao. Then he applied for a
subpoena to require the deponent to appear before a notary public
here. At least, tama siya doon. Ang mistake niya, he applied for a
subpoena in the Manila court where the case is pending and the
judge there, maybe he did not read Rule 21, issued a subpoena
addressed to the person in Davao to appear before the notary
public in Davao and the witness did not appear. So the lawyer
realized na mali siya. So he had to do it all over again in Davao, not
in Manila. The subpoena has no more effect beyond 100
kilometers. It should be filed not where the case is pending but at
the court of the place where the deposition is to be taken. In other
words, the error was corrected, but can you imagine the waste of
time and effort.
Example: Suppose if there is a case between me and somebody

and I suspect Pedro knows something about the facts but I am not
sure, so I will take his deposition. I will start asking questions to
Pedro wherein practically Im groping in the dark. I just start asking
questions left and right hoping that, I may stumble into something
about the case.
Q: Is that allowed? Pataka lang ba ang style of asking questions.
A: YES, it is allowed. Precisely, the mode of discovery is a fishing
expedition in the hope that you will discover something in the
course of a questioning. If I already know a fact, there is nothing to
discover. It is very broad that I may discover something in the
course of questioning. You can ask the deponent any matter
related to the claim or defense but there are limitations.
Generally, depositions are taken at the start of the case before the
trial. But in the case of
DASMARIAS GARMENTS, INC. vs. REYES 225 SCRA 622 [1993]
LIMITATIONS IN DEPOSITION TAKING
ISSUE: Whether or not deposition taking is only allowed before the

action comes to trial. Can you still resort to deposition under Rule
23 when the trial is already ongoing or it is only at the pre-trial?
Q: What are the limitations or prohibitions in deposition taking?

A: The following are the limitations in Deposition Taking:
HELD: Depositions may be taken at any time after the institution

of any action, whenever necessary or convenient. There is no rule
that limits deposition-taking only to the period of pre-trial or
before it; no prohibition against the taking of depositions after pretrial. Indeed, the law authorizes the taking of depositions of
witnesses before or after an appeal is taken from the judgment of a
Regional Trial Court to perpetuate their testimony for use in the
1.)
2.)
3.)
271
The matter inquired into is not privileged either under

the rules on evidence or special law;
The matter inquired into is relevant to the subject of the
pending action;
The court may issue orders to protect the parties and its
deponents under Sections 16 or 18.

FIRST LIMITATION: That the matter inquired into is not privileged.
USE OF DEPOSITIONS
There are things which you cannot compel a person to reveal in

court.
Sec. 4. Use of depositions. At the trial or upon

the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so
far as admissible under the rules of evidence,
may be used against any party who was
present or represented at the taking of the
deposition or who had due notice thereof, in
accordance with any one of the following
provisions:
EXAMPLE: You cannot compel the wife to reveal in court what her
husband told her in confidence during their marriage. That is
known as the marital privileged communication rule (Rule 130,
Section 24 [a]).
Other privileged communications: Lawyer-Client communication
rule (Rule 130, Section 24 [b]); Physician-Patient communication
rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule
(Rule 130, Section 24 [d]). Or, business trade secrets such as the
formula of your product.
xxxxx
Where the witness is available to testify and the situation is not
one of those excepted under Section 4, his deposition is
inadmissible in evidence and he should be made to testify.
So, if you cannot ask that in a trial, you cannot also ask that in a
deposition taking.
Q: In what proceedings may a deposition be used?

SECOND LIMITATION: The matter inquired into is relevant to the
pending action.
A: The following:
While deposition taking authorizes a fishing expedition, you are not

allowed however, to go beyond the topic.
1)
2)
3)
EXAMPLE: You will ask the witness about an incident which

happened and she was supposed to be there. Where were you on
this date? I was there. Who was with you? I was with my
boyfriend. When did he become your boyfriend? or How often
do you date each other? or Whats his favorite color? Malaki ba
ang tiyan niya? My golly! Those questions are irrelevant. Anong
pakialam niyan sa topic? Walang connection ba!
Q: Against whom may a deposition be used?

A: Against the following:
1)
2)
THIRD LIMITATION: The court may issue orders to protect the

parties and its deponents under Sections 16 or 18 of this Rule.
3)
While it is true that leave of court is not necessary anymore, you

have to remember that it is related to a pending case and the court
has control over the case. That is why, while leave of court is not
necessary, any party who is aggrieved can go to court and
complain. And the court is authorized to issue orders to protect the
parties and its deponents under Sections 16 or 18 of this Rule.
2.
3.
against any party who was present; or

against a party who was represented at the taking of the
deposition; or
against a party who did not appear or represented but
was duly notified of the scheduled deposition taking.
So, the procedure for deposition taking is first, to notify the other
party of the date, place and time of the deposition taking of a
person. The other party is free to go there and participate. So if a
person appeared and participated, he is bound by the deposition. If
he fails to appear but sent a representative, the same effect the
person is bound. Suppose a person received the notice and never
bothered to go or participate, he is still bound because the law
says, for as long as you are notified, you are bound.
Scope of examination in deposition

1.
At the trial;
Upon a hearing of a motion; or
Upon a hearing of interlocutory proceeding (e.g.
issuance of a writ of preliminary injunction or
attachment)
matter which is relevant to the subject of the pending

action;
not privileged; and
not restricted by a protective order (Secs. 16 and 18)
So whether you will come or not, you are bound by the deposition
taking. In this case, you might as well show up.
Summary of use:
Q: In what proceedings can a deposition be used?

1)
A: It can be used later during the trial of the case, or in supporting
or opposing a motion. A good example is the remedy of summary
judgment under Rule 35. Under this Rule, a party can file a motion
for summary judgment to demonstrate that the party has no cause
of action. In that sense, I will support my motions with affidavit,
depositions or documents.
2)
272
Deponent is any person - - - can be used by any party to

contradict or impeach the testimony of said deponent;
deponent is a party or anyone who 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 - - - can be used by any party for any
purpose;

3)
deponent is a witness, whether or not a party - - - can be

used by any party for any purpose under any of the
following 5 instances:
a. the witness is dead;
b. the witness resides more than 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;
c. the witness is unable to testify because of age, sickness,
infirmity, or imprisonment;
d. the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
e. upon application and notice, that such exceptional
circumstances exist as to make it desirable in the interest
of justice.
They cannot change story during the trial because I can impeach
them.
Therefore, a deposition is not a substitute for the testimony of the
witness in court. You still have to present him in court. He has to
testify all over again but at least you already have a guideline. So, if
he deviates from the deposition, you can impeach him using the
deposition taken under oath earlier.
(b) The deposition of a party or of anyone
who at the time of taking the deposition was
an officer, director, or managing agent of a
public or private corporation, partnership, or
association which is a party may be used by
an adverse party for any purpose;
Note: Certiorari will not lie against an order admitting or rejecting

a deposition in evidence. The remedy is an appeal from the
judgment.
Q: What is the difference between paragraphs [a] and [b]?

A: The following:
The reason is because it is merely an error of law not grave abuse

of discretion.
(a) Any deposition may be used by any party
for the purpose of contradicting or
impeaching the testimony of deponent as a
witness;
EXAMPLE: I will take the deposition of Mr. Malaki as a possible
witness. After listening to his testimony, his testimony is in my
favor. I tell the court during trial that my next witness is Mr. Malaki
but since he is busy and his deposition is taken beforehand, I will
no longer present him but instead I will present as evidence his
deposition to take the place of his oral testimony in court.
1.)
In paragraph [a], it is the deposition of a WITNESS

and not a party, while
In paragraph [b], it is the deposition of the PARTY
himself.
2.)
In paragraph [a], the deposition of witness can be

used only for contradicting or impeaching the testimony
of deponent as a witness, while
In paragraph [b], the deposition of a party can be used
for any purpose. So it is broader than the first.
ILLUSTRATION: Suppose I will take the deposition of my opponent

(adverse party) and I have already a record of his testimony.
During the trial if he testifies contrary to the deposition, I could use
it to impeach him. But suppose the deposition is in my favor, I
could present the deposition as an admission in my favor. I could
use it as evidence against my opponent. Therefore, I can use it as
evidence or I can use it as a tool to impeach or contradict the other
party.
Q: Is that allowed? Can a deposition substitute for his oral

testimony?
A: NO, a deposition can only be used for the purpose of
contradicting or impeaching the testimony of deponent as a
witness. It does not exempt the witness from testifying in court. It
is only a means of knowing what the witness will testify.
In other words, the deposition of a mere WITNESS is for strict

purpose (for impeachment only) and the deposition of an ADVERSE
PARTY is for any purposes because I can use it to impeach or I can
use it as evidence. And if a witness say something in my favor, I
cannot use it as evidence. I have to ask the witness to repeat his
statement in court. But if it is a party, I can use it as evidence
already under the rule on admission of evidence that the act or
declaration of a PARTY may be used as evidence against him (Rule
130, Section 26). So, that is the difference between deposition of a
party and a witness.
When you take the deposition of a witness, you are already assured
that this will be his story. If I asked you the same question in court,
naturally he will have the same answer. So there are no more
surprises. If I am asking a question identical to my deposition, I
expect the answer to be identical during the trial.
Q: Suppose the witness during the trial will reverse his testimony.
His testimony in the deposition is favorable to me but during the
trial, pabor naman sa kalaban.
Q: Suppose the adverse party is a corporation
A: I can now use his deposition to destroy him. I will impeach him
by showing that the witness is not reliable. To IMPEACH the
testimony of a witness is to destroy his credibility. I will offer in
evidence the deposition for impeachment purposes. This is known
as PRIOR INCONSISTENT STATEMENT under the rules on evidence.
A: Under paragraph [b], you can take the deposition of any of its
officers, directors, or managing agent of the corporation.
(c) The deposition of a witness, whether or
not a party, may be used by any party for any
273

purpose if the court finds: (1) that the

witness is dead; or (2) that the witness
resides at a distance 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 (3) that the
witness is unable to attend or testify because
of age, sickness, infirmity, or imprisonment;
or (4) that the party offering the deposition
has been unable to procure the attendance of
the witness by subpoena; or (5) upon
application and notice, that such exceptional
circumstances exist as to make it desirable, in
the interest of justice and with due regard to
the importance of presenting the testimony
of witnesses orally in open court, to allow the
deposition to be used; and
THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE

HUNDRED (100) KILOMETERS FROM THE PLACE OF TRIAL OR
HEARING, OR IS OUT OF THE PHILIPPINES
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I
cannot compel him to come to Davao and testify in a case because
of the 100-kilometer rule. The remedy is to go to Cebu and take his
deposition there. When the case in Davao is called, I will tell the
court that my next witness is from Cebu and the distance from
Davao is more than 100 kilometers. So I have no choice but to take
his deposition there. In this case, I can offer as evidence his
deposition to take the place of his oral testimony. And that is
allowed as exception to paragraph [a].
And if your witness is leaving for abroad, you might as well take the
deposition before it is too late, or you might end up without any
witness. That is the advantage of paragraph [c].
WITNESS NOT FOUND
Paragraph [c] is an exception to paragraph [a]. Paragraph [a]

applies only to a deposition of a witness for contradicting or
impeaching his testimony. It is only in paragraph [b] which applies
the use of deposition for any purpose but it refers to the deposition
of the adverse party.
So, if I am unable to procure the attendance of my witness by

subpoena means that the witness can no longer be found. His
whereabouts is already unknown but I was able to take his
deposition earlier.
(d) If only part of a deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of it which is
relevant to the part introduced, and any
party may introduce any other parts.
Now, paragraph [c] allows the use of the deposition of a WITNESS

for any purpose.
DEATH
Q: I will take the deposition of Juan who is my witness. During
the trial, my next witness is Juan. Do I have to present Juan or
only his testimony in the deposition as evidence?
ILLUSTRATION: Suppose I will take the deposition of Juan dela

Cruz. The first part is in my favor but when he was cross-examined
by the other party, he clarified his answers and turned out that his
original answers were not really in my favor.
A: I have to present my witness Juan because under paragraph [a],

the deposition is only good for impeachment purposes but not a
replacement for his oral testimony.
So there are two parts of the deposition: PART ONE, in the general
questions, the answers seem to be in my favor; PART TWO, when
the questions are specific, it turned out that it was not in my favor.
So if I am the lawyer what I will offer is the part one as my evidence
because it is in favor of my client. The other party will present the
other part.
Q: Suppose, when Im about to present Juan during the trial, a

day before that he died. So, I have no more witness. Can I now
present his testimony in the deposition as evidence?
A: YES. Under the law, his deposition will take the place of his oral
testimony because he is dead. However, if he is alive, apply
paragraph [a] you cannot substitute his deposition to his oral
testimony.
In evidence, the party is not obliged to offer in evidence documents

which are against his cause. It is now the job of the other lawyer to
offer the other part thereof (c.f. Section 17, Rule 132). So if this is
so, the picture created will only be half of the whole picture.
Now, it is true that when you take the deposition of your own
witness, you are supplying the other party a means to impeach the
testimony of your witness. But if you look at paragraph [c], it is also
important to take the deposition of your witnesses. The purpose is
just in case your witness will die before he can testify in court. At
least, kung nakuha mo na ang deposition niya earlier, masuwerte
ka.
Q: Is this unethical as it is suppressing the truth?

A: No, I am not suppressing the truth. Lawyers are not allowed to
lie. Nowhere in the Legal Ethics is it being espoused that lawyers
are told to lie. In fact, a lawyer must be honest and true for the
administration of justice. It is the lawyer of the other side who has
the absolute right to complete the picture by offering the other
half. I am not under obligation to help the other side. A lawyer has
no obligation to present everything. He is only under the
274

obligation to support the interest of my client. What is unethical is

when you present something against the interest of your client.
Sec. 7. Effect of taking depositions. A party

shall not be deemed to make a person his
own witness for any purpose by taking his
deposition. (7, R24)
Q: Is it not twisting the truth?

A: NO. Twisting the truth is changing the facts. I am not changing
the facts of the story. I am only presenting one side of the story.
But definitely the other party is not precluded from testifying to
present the other half of the story. If the other party fails to
present the other half of the story, that is their problem. Do not
blame me.
We know that deposition taking is a fishing expedition. If after

taking a witness deposition, he knows nothing, then he is useless as
a witness to me. You are not my witness.
If after taking your deposition, it turns out that everything you say
is against me, am I bound by your testimony? NO. In fact, it is the
other party who will use you as his witness. But definitely, you are
not my witness.
Sec. 5. Effect of substitution of parties.

Substitution of parties does not affect the
right to use depositions previously taken;
and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties
or their representatives or successors in
interest, all depositions lawfully taken and
duly filed in the former action may be used in
the latter as if originally taken therefor. (5,
R24)
General rule:
A party shall not be deemed to make a person his own witness for
any purpose by taking his deposition because depositions are taken
for discovery and not for use as evidence.
Exception:
If a party offers the deposition in evidence, then he is deemed to
have made the deponent his witness (Sec. 8)
Q: Plaintiff filed a case against defendant. Depositions were taken.

Later, one of the parties died and there was substitution. Is there a
need of taking depositions again? Will the deposition already taken
be also applicable to the same case although the parties are now
different?
Exception to the exception

Unless the deposition is that of an opposing party or the deposition
is used to impeach or contradict the deponent (sec. 8).
Sec. 8. Effect of using depositions. The
introduction in evidence of the deposition or
any part thereof for any purpose other than
that of contradicting or impeaching the
deponent makes the deponent the witness of
the party introducing the deposition, but this
shall not apply to the use by an adverse party
of a deposition as described in paragraph (b)
of section 4 of this Rule. (8, R24)
A: YES. The substitution of parties does not affect the right to use
depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken.
Later, the case is dismissed without prejudice. Jolina re-filed the
case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still
apply to the new case. There is no need of repeating the whole
process.
Sec. 9. Rebutting deposition. At the trial or

hearing, any party may rebut any relevant
evidence contained in a deposition whether
introduced by him or by any other party. (9,
R24)
Sec. 6. Objections to admissibility. Subject to

the provisions of section 29 of this Rule,
objection may be made at the trial or hearing
to receiving in evidence any deposition or
part thereof for any reason which would
require the exclusion of the evidence if the
witness were then present and testifying. (6,
R24)
It is just like a witness in court. If a witness says something in court,

you can always prove that that is not true. If it is a deposition, the
same thing you can always rebut the truth of what he said in his
deposition.
Q: Can you object to the evidence which is being offered during the
deposition taking?
BEFORE WHOM DEPOSITIONS ARE TAKEN

If the deposition is to be taken WITHIN THE PHILIPPINES, who are
authorized to act as deposition officer? Section 10:
A: YES, however the deposition officer cannot rule but the

objection is recorded. It is the judge who will rule on the objection
later during the trial.
Sec. 10. Persons before whom depositions may

be taken within the Philippines. Within the
275

Philippines, depositions may be taken before

any judge, notary public, or the person
referred to in section 14 hereof. (10a, R24)
of court is required, you course it to the Department of Foreign

Affairs. The parties are not supposed to communicate directly to
the Philippine Embassy.
Q: If the deposition taking is in the Philippines, who are these

persons before whom depositions are taken?
Q: How about in places where we do not have embassy?

A: Those with country where we do not have diplomatic relations,
you have to avail of [b]. So in this case, the person who is authorize
to take the deposition may be the one who is authorized by
commission, or if not by commission, by letters rogatory.
A: The following:
1)
2)
3)
ANY JUDGE. So, it is not necessary the judge acting on

the case. In fact, you can request a judge in Manila to be
the deposition officer and he will not be the one to
decide. He is only the deposition officer;
What do you mean by commission or a letters rogatory? Sec 12:

Sec. 12. Commission or letters rogatory. A
commission or letters rogatory shall be issued
only when necessary or convenient, on
application and notice, and on such terms
and with such direction as are just and
appropriate. Officers may be designated in
notices or commissions either by name or
descriptive title and letters rogatory may be
addressed to the appropriate judicial
authority in the foreign country. (12a, R24)
NOTARY PUBLIC. A notary public is authorized by law to

administer oath. Take note that not all lawyers are
notary public. To be a notary public, you have to apply
for commission in the court of the place where you are
practicing. If you are a notary public for Davao City, you
cannot be a notary public in any other place. And usually,
a commission for notary public is only good for 2 years.
After 2 years, you have to re-apply.
PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of

depositions. If the parties so stipulate in writing,
depositions may be taken before any person
authorized to administer oaths, at any time or
place, in accordance with these Rules, and when
so taken may be used like other depositions. (24a,
R24)
By COMMISSION, somebody other than Philippine consul like in

Taiwan, we have Philippine Trade Department in Taiwan because
of our trade relations. The court will issue a commission to the
head of the trade mission there to act as deposition officer. Or any
other person appointed by the judge by court order.
A COMMISSION may be defined as an instrument issued by a court
of justice, or other competent tribunal, to authorize a person to
take depositions, or do any other act by authority of such court or
tribunal.
So, the parties may stipulate in writing that the

deposition officer may not be a judge or a notary public.
It can be other person who is authorized to administer
oath such as prosecutors, clerk of court who is a lawyer,
labor arbiters, etc. Anyway, they are also authorized to
administer oaths.
So, suppose I would like to take the deposition of somebody who is

staying in Afghanistan where we have no consulate but I know of a
Filipino lawyer who resides there. I will request the court that this
Filipino lawyer abroad be authorized to take the deposition of a
person there. If the court agrees, it will issue what is known as a
commission.
If the deposition is to be taken ABROAD, who are authorized to act

as deposition officer? Section 11:
Sec. 11. Persons before whom depositions may
be taken in foreign countries. In a foreign
state or country, depositions may be taken
(a) on notice before a secretary of embassy or
legation, consul general, consul, vice-consul,
or consular agent of the Republic of the
Philippines; (b) before such person or officer
as may be appointed by commission or under
letters rogatory; or (c) the person referred to
in section 14 hereof. (11a, R24)
But suppose none at all, the court will send letters rogatory
addressed to the court of a foreign country.
Q: Define letters rogatory.
A: LETTERS ROGATORY is an instrument whereby the foreign court
is informed of the pendency of the case and the name of the
foreign witnesses, and is requested to cause their depositions to
be taken in due course of law, for the furtherance of justice, with
an offer on the party of the court making the request, to do the
like for the other, in a similar case. (Ballentines Law Dict., 2nd Ed.,
p. 744)
The amendment here again is the persons referred to under

Section 14.
So, a secretary of the Philippine embassy or consulate abroad is
authorized to act as deposition officer, as well as the consul
general, vice-consul, although on a SC circular, if the judge will
authorize the taking of deposition abroad, because this time leave
It is an instrument sent in the name and by the authority of a judge

or court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a case pending before the former, a
276

witness who is within the jurisdiction of the judge or court to

whom such letters are addressed. (Feria, 2001, p. 518)
witness who is within the jurisdiction of the judge or court to

whom such letters are addressed.
EXAMPLE: The case is in Davao. W lives in North Korea. P should

file a motion in court for the court to issue a letters rogatory. The
judge will make a formal communication to the court in Pyongyang
to please take Ws deposition with the following request: to mail
back the answer and offer to return the favor. If the request is
ignored, there is nothing that we can do. But normally, they comply.
A COMMISSION is addressed to officers designated either by

name or descriptive title, while LETTERS ROGATORY are addressed
to some appropriate judicial authority in the foreign state.
Noteworthy in this connection is the indication in the Rules that
letters rogatory may be applied for and issued only after a
commission has been returned unexecuted as is apparent from
Form 21 of the Judicial Standard Forms appended to the (1964)
Rules of Court. So as a matter of practice, the court should first
resort to commission. You must allege that the commission has
been returned unexecuted before resorting to letters rogatory.
So, letters rogatory is a request to the appropriate foreign judicial

authority to take the deposition of a witness who is in their
jurisdiction and please send us a copy and we assure you in the
future, if you have the same problem, we will reciprocate.
That is international law. Deposition can be understood by the
officer in other country because it is internationally known. If the
officer in the foreign country will not do it, we have no choice
because it is only a request.
ISSUE #2: Petitioner however prevent the carrying out of the

commission on the ground that the deposition-taking will take
place in a foreign jurisdiction not recognized by the Philippines in
view of its one-China policy. Can a deposition be taken in Taiwan
where the Philippines has no diplomatic relations because of the
one-Chine policy?
Distinctions between commission and letters rogatory

1)
A commission is issued to a non-judicial foreign officer

who will directly take the testimony while
HELD: YES. What matters is that the deposition is taken before a

Philippine official acting by authority of the Philippine Department
of Foreign Affairs and in virtue of a commission duly issued by the
Philippine Court.
letters are issued to the appropriate judicial officer of

the foreign country who will direct somebody in said
foreign country to take down testimony.
2)
Sec. 13. Disqualification by interest. No deposition

shall be taken before a person who is a relative
within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the
parties; or who is a relative within the same
degree, or employee of such counsel; or who is
financially interested in the action. (13a, R24)
The applicable rules of procedure for commission are

those of the requesting court while for
letters, are those of the foreign country requested to act;
3)
Commission is resorted to if permission of the foreign

country is given while
You are disqualified to act as deposition officer if you are related to

any of the parties or the lawyer. You get somebody who is not
related.
the latter is resorted to if the execution of the

commission is refused in the foreign country;
4)
Leave of court is not necessary for commission but

Sec. 15. Deposition upon oral examination;
notice; time and place. A party desiring to
take the deposition of any person upon oral
examination shall give reasonable notice in
writing to every other party to the action.
The notice shall state the time and place for
taking the deposition and the name and
address of each person to be examined, if
known, and if the name is not known, a
general description sufficient to identify him
or the particular class or group to which he
belongs. On motion of any party upon whom
the notice is served, the court may for cause
shown enlarge or shorten the time. (15, R24)
necessary for letters.

The SC defined again commission and letters rogatory and
distinguished one from the other in the case of
DASMARIAS GARMENTS, INC. vs. REYES - 225 SCRA 622 [1993]
ISSUE #1: Distinguish commission from letters rogatory.
HELD: A COMMISSION may be defined as an instrument issued by
a court of justice, or other competent tribunal, to authorize a
person to take depositions, or do any other act by authority of such
court or tribunal.
LETTERS ROGATORY, on the other hand, may be defined as an
instrument sent in the name and by the authority of a judge or
court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a cause pending before the former, a
There are 2 types of deposition taking:

(1) deposition upon oral examination and
277

(2)
deposition upon written interrogatories. The former is

governed by Section 15 which is the most popular:
Question-answer and everything is recorded.
A: After notice is served for taking a deposition by oral

examination, upon motion seasonably made by any party or by the
person to be examined and for good cause shown, the court in
which the action is pending may issue the following orders:
Take note that before deposition is taken, there should be notice to

the adverse party. The notice shall state the time and place for
taking the deposition and the name and address of each person to
be examined.
1)
2)
3)
4)
5)
The last sentence, On motion of any party upon whom the noticed
is served, the court may for cause shown enlarge or shorten the
time. Suppose you will send me a notice that you are going to
take the deposition of a witness from February 1 to 20 morning and
afternoon. Twenty days is too much. I can go to court and
complain. That should be reduced. The court may come in and
enlarge or shorten the time. The court may also do this even if
leave of court is not required.
6)
7)
8)
Sec. 16. Orders for the protection of parties

and deponents. After notice is served for
taking a deposition by oral examination,
upon motion seasonably made by any party
or by the person to be examined and for
good cause shown, the court in which the
action is pending may make an order that the
deposition shall not be taken, or that it may
be taken only at some designated place other
than that stated in the notice, or that it may
be taken only on written interrogatories, or
that certain matters shall not be inquired
into, or that the scope of the examination
shall be held with no one present except the
parties to the action and their officers or
counsel, or that after being sealed the
deposition shall be opened only by order of
the court, or that secret processes,
developments, or research need not be
disclosed, or that the parties shall
simultaneously file specified documents or
information enclosed in sealed envelopes to
be opened as directed by the court; or the
court may make any other order which
justice requires to protect the party or
witness from annoyance, embarrassment, or
oppression. (16a, R24)
9)
That the deposition shall not be taken;

That it may be taken only at some designated place
other than that stated in the notice;
That it may be taken only on written interrogatories;
That certain matters shall not be inquired into;
That the scope of the examination shall be held with no
one present except the parties to the action and their
officers or counsel;
That after being sealed the deposition shall be opened
only by order of the court;
That secret processes, developments, or research need
not be disclosed;
That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court;
The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression. (Section 16)
Sec. 18. Motion to terminate or limit examination. At any
time during the taking of the deposition, on motion or
petition of any party or of the deponent and upon a
showing that the examination is being conducted in bad
faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court
in which the action is pending or the Regional Trial
Court of the place where the deposition is being taken
may order the officer conducting the examination to
cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule. If the
order made terminates the examination, it shall be
resumed thereafter only upon the order of the court in
which the action is pending. Upon demand of the
objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to
make a notice for an order. In granting or refusing such
order, the court may impose upon either party or upon
the witness the requirement to pay such costs or
expenses as the court may deem reasonable. (18a, R24)
Section 16 and 18 are similar. They both talk about the power of
the court to control the deposition taking. Section 16 is about
protective orders BEFORE deposition taking. Section 18 talks about
protective orders DURING the deposition taking where the court
may stop or limit the deposition taking.
While it is true that leave of court is not necessary anymore, you

have to remember that it is related to a pending case and the court
has control over the case. That is why, while leave of court is not
necessary, any party who is aggrieved can go to court and
complain. Deposition is purely your concern provided nobody
would come here and complain. That is one of the limitations of
deposition taking.
A motion to terminate or limit examination may be filed:

1.) any time during the taking of the deposition;
2.) on motion or petition of any party or of the deponent;
and
3.) upon showing that the examination is conducted in:
a) bad faith;
b) in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party.
Q: What orders may court issue for the protection of parties and
deponents; when may orders be issued; what court has power to
issue the orders?
When the constitutional privilege against self-incrimination is

invoked by the deponent or his counsel, the trial court may stop
278

the examination (Isabela Sugar Co. vs. Macadaeg GR No. L-5924,

Oct. 28, 1953)
be read to or by him, unless such examination and

reading are waived by the witness and by the parties.
Any changes in form or substance which the witness
desires to make shall be entered upon the deposition
by the officer with a statement of the reasons given by
the witness for making them. The deposition shall then
be signed by the witness, unless the parties by
stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is
not signed by the witness, the officer shall sign it and
state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of the
refusal to sign together with the reason given therefor,
if any, and the deposition may then be used as fully as
though signed, unless on a motion to suppress under
section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of
the deposition in whole or in part. (19a, R24)
Protection Order (Section 16) and Motion to Terminate or Limit

Examination (Section 18)
1.
The first provides protection to the party or witness

before the taking of the deposition, while the latter
provides such protection during the taking of the
testimony;
2.
Motion for issuance of the first is filed with the court in

which the action is pending while the latter motion or
petition is filed in the court in which the action is
pending or the RTC of the place where the deposition is
being taken.
Sec. 17. Record of examination; oath; objections. The officer

before whom the deposition is to be taken shall put the
witness on oath and shall personally, or by someone acting
under his direction and in his presence, record the testimony
of the witness. The testimony shall be taken stenographically
unless the parties agree otherwise. All objections made at
the time of the examination to the qualifications of the
officer taking the deposition, or to the manner of taking it, or
to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings, shall be noted
by the officer upon the deposition. Evidence objected to
shall be taken subject to the objections. In lieu of
participating in the oral examination, parties served with
notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to
the witness and record the answers verbatim. (17, R24)
So after the deposition of the deponent is taken, the deposition

officer shall submit the deposition to the deponent for
examination. He may change his answers but he must state the
reason for the change. And he signs it, unless the parties by
stipulation waive the signing, or the witness is ill, or cannot be
found or refuses to sign. In the latter cases, the deposition will be
signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer
shall certify on the deposition that the witness was duly
sworn to by him and that the deposition is a true record
of the testimony given by the witness. He shall then
securely seal the deposition in an envelope indorsed
with the title of the action and marked "Deposition of
(here insert the name of witness)" and shall promptly
file it with the court in which the action is pending or
send it by registered mail to the clerk thereof for filing.
(20, R24)
Q: How is deposition in oral examination taken?

A: It must be under oath. The testimony will be taken by the
stenographer. And objections must be recorded. Evidence objected
to shall be taken subject to the objections.
Q: Can the deposition officer make a ruling on the objection/s?
A: NO. He cannot. But the objection will be noted and the
deponent must answer. Later on, if that deposition is offered as
evidence in court, the court will now rule on the objection. If the
objection is overruled, the answer as recorded remains. If the
objection is sustained, the answer as recorded is erased as if it was
never answered. That is the meaning of evidence objected to shall
be taken, subject to the objections.
Sec. 21. Notice of filing. The officer taking the

deposition shall give prompt notice of its filing to all the
parties. (21, R24)
So, the deposition officer cannot make a ruling on the objection. It

is only the judge of the court where the case is pending who will
make the ruling on it.
Any party can ask for a copy of the deposition upon payment of
reasonable charges therefor.
Sec. 22. Furnishing copies. Upon payment of reasonable

charges therefor, the officer shall furnish a copy of the
deposition to any party or to the deponent. (22, R24)
Sec. 23. Failure to attend of party giving notice. If the

party giving the notice of the taking of a deposition fails
to attend and proceed therewith and another attends
in person or by counsel pursuant to the notice, the
court may order the party giving the notice to pay such
other party the amount of the reasonable expenses
incurred by him and his counsel in so attending,
including reasonable attorneys fees. (23a, R24)
Take note: answers to depositions not objected to cannot be

objected to in court during the trial, UNLESS the objection is based
on a new ground which only come up after the deposition.
Sec. 19. Submission to witness; changes; signing. When
the testimony is fully transcribed, the deposition shall
be submitted to the witness for examination and shall
279

Suppose the opposing counsel is from Manila was notified of the

schedule of the taking of a deposition of a witness in Davao. And he
came over. But the deposition did not proceed because the party
sending the notice did not show up. So he caused the other party a
lot of inconvenience. The Manila lawyer can file a motion in court
to ask for reimbursement of all his expenses in this case.
Practically, there is no personal confrontation of the witness. If

your witness is abroad, it is very expensive for you to go there and
conduct an oral examination. So, the practical means is only
deposition upon written interrogatories.
Sec. 26. Officers to take responses and prepare record. A
copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the
deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by
sections 17, 19 and 20 of this Rule, to take the
testimony of the witness in response to 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. (26, R24)
Sec. 24. Failure of party giving notice to serve subpoena.

If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon
him and the witness because of such failure does not
attend, and if another party attends in person or by
counsel because he expects the deposition of that
witness to be taken, the court may order the party
giving the notice to pay to such other party the amount
of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorneys
fees. (24a, R24)
Sec. 27. Notice of filing and furnishing copies. When a

deposition upon interrogatories is filed, the officer
taking it shall promptly give notice thereof to all the
parties, and may furnish copies to them or to the
deponent upon payment of reasonable charges
therefor. (27, R24)
Suppose the opposing counsel is from Manila was notified of the

schedule of the taking of a deposition of a witness in Davao. And he
came over. The party sending the notice is also present. But this
time it is the witness who is absent because the party sending the
notice forgot to have the witness subpoenaed. Again, the Manila
lawyer can file a motion in court to ask for reimbursement of all his
expenses.
Sec. 28. Orders for the protection of parties and

deponents. After the service of the interrogatories and
prior to the taking of the testimony of the deponent,
the court in which the action is pending, on motion
promptly made by a party or a deponent, and for good
cause shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate and just
or an order that the deposition shall not be taken
before the officer designated in the notice or that it
shall not be taken except upon oral examination. (28,
R24)
Sec. 25. Deposition upon written interrogatories; service

of notice and of interrogatories. A party desiring to take
the deposition of any person upon written
interrogatories shall serve them upon every other party
with a notice stating the name and address of the
person who is to answer them and the name or
descriptive title and address of the officer before whom
the deposition is to be taken. Within ten (10) days
thereafter, a party so served may serve crossinterrogatories upon the party proposing to take the
deposition. Within five (5) days thereafter, the latter
may serve re-direct interrogatories upon a party who
has served crossinterrogatories. Within three (3) days
after being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the party
proposing to take the deposition. (25, R24)
So the protections provided under Sections 15, 16 and 18 are also

applicable in oral examinations.
Are the mistakes in deposition taking fatal?
Sec. 29. Effects of errors and irregularities in depositions.
(a) As to notice.- All errors and irregularities in the
notice for taking a deposition are waived unless written
objection is promptly served upon the party giving the
notice.
The difference between a deposition upon oral examination and

written interrogatories is that in oral examination, the questions
and the answers are oral.
(b) As to disqualification of officer.- Objection to taking a

deposition because of disqualification of the officer
before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
In deposition upon written interrogatories, the questions are

prepared already in advance and that is direct interrogatories. And
then they furnish you a copy and after receiving it, you may also,
within 10 days, prepare your questions or cross-interrogatories and
you also furnish them copies of it. And based on that, they can ask
further questions. If they are now sufficient, the deposition officer
shall compound the question one by one but every question
requires an answer.
(c) As to competency or relevancy of evidence.Objections to the competency of a witness or the

competency, relevancy, or materiality of testimony are
280

not waived by failure to make them before or during

the taking of the deposition, unless the ground of the
objection is one which might have been obviated or
removed if presented at that time.
(d) As to oral examination and other particulars.- Errors
and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the
questions or answers, in the oath or affirmation, or in
the conduct of the parties and errors of any kind which
might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.
(e) As to form of written interrogatories.- Objections to
the form of written interrogatories submitted under
sections 25 and 26 of this Rule are waived unless served
in writing upon the party propounding them within the
time allowed for serving succeeding cross or other
interrogatories and within three (3) days after service
of the last interrogatories authorized.
(f) As to manner of preparation.- Errors and irregularities
in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by
the officer under sections 17, 19, 20 and 26 of this Rule
are waived unless a motion to suppress the deposition
or some part thereof is made with reasonable
promptness after such defect is, or with due diligence
might have been, ascertained. (29a, R24)
So, if you will notice, majority of all the errors are waived if
objection thereto is not promptly made.
281

Rule 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
even if there is as yet no case, I will just file a petition under Rule
24. If I can prove really that the testimony would be relevant or
important the court will issue an order allowing me to take
deposition in advance.
TWO TYPES OF DEPOSITION TAKING:

1)
2)
Section 1. Depositions before action; petition.

A person who desires to perpetuate his own
testimony or that of another person
regarding any matter that may be cognizable
in any court of the Philippines, may file a
verified petition in the court of the place of
the residence of any expected adverse party.
(1a, R134)
Deposition Pending Action (Rule 23) and

Deposition Before Action or Pending Appeal (Rule 24)
In Rule 23, you take a testimony or deposition of people in relation

to a pending case. There is already a pending case in court, so
everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed. That is
why it is called Depositions Before Action. Actually, the concept of
depositions before action is not really new. This is also found in the
Rules prior to 1997 but was found in another rule. It was called
Perpetuation of Testimony (Rule 134 of the old Rules of Court).
What the new rules did was simply to transfer Rule 134 to Rule 24.
A petition may be filed by any person:

1)
2)
A deposition before action and a deposition pending appeal are

referred to as perpetuation of testimony or perpetua rei
memoriam because their objective is to perpetuate the testimony
of a witness for future use.
who wants to perpetuate his own testimony; or

who wants to perpetuate the testimony of another
person.
It may be availed only in civil cases and not in criminal cases.

Q: Where will you file it?
A: In the court of the place of the residence of any expected adverse
party because there is still no case. So you have to file an
independent petition under Rule 24
Depositions under this Rule are also taken conditionally to be used

at the trial only in case the deponent is not available.
Depositions under this Rule do not prove the existence of any right
or facts of the facts which they relate, as it can be controverted at
the trial in the same manner as though no perpetuation of
testimony was ever had.
Sec. 2. Contents of petition. The petition shall be

entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action
in a court of the Philippines but is presently unable to
bring it or cause it to be brought; (b) the subject matter
of the expected action and his interest therein; (c) the
facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he
expects will be adverse parties and their addresses so
far as known; and (e) the names and addresses of the
persons to be examined and the substance of the
testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named
in the petition for the purpose of perpetuating their
testimony. (S2, R134)
However, in the absence of any objection to its taking, and even if

the deponent did not testify at the hearing, the perpetuated
testimony constitutes prima facie proof of facts referred to in the
deposition.
For example, the petitioner has a cause of action which has not yet
accrued. In such a case, inasmuch as he cannot bring the action
until the cause of action accrues, he may perpetuate his testimony
or that of another person (Feria, 2001 p. 534)
EXAMPLE: Suppose there is a case which I would like to file against
B. But for the moment I cannot file it yet. I intend to file a case
against him. So there is an expected case between us in the future
only there are certain things that I still have to do. But if I file a
case against B, I have some witnesses who are all ready like A and
C. But the trouble is, I learned lately that A will die soon. He has
cancer and C will have to leave for abroad, never to come back.
Definitely, if I will file the case, there are no more witnesses
available.
The petition shall be verified and shall be filed in the place of

residence of any expected adverse party. It shall contain the
matters set forth in Sec. 2 of Rule 24.
Sec. 3. Notice and service. The petitioner shall serve a notice
upon each person named in the petition as an expected
adverse party, together with a copy of the petition, stating
that the petitioner will apply to the court, at a time and place
named therein, for the order described in the petition. At
least twenty (20) days before the date of the hearing, the
court shall cause notice thereof to be served on the parties
Q: Is there a way of taking testimony or deposition in advance even

before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court
known as Petition to Perpetuate the Testimony of A and C. Well,
282

and prospective deponents in the manner provided for service

of summons. (3a, R134)
1)
2)
in which the judgment was rendered may allow the

taking of depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in
the said court. In such case the party who desires to
perpetuate the testimony may make a motion in the
said court for leave to take the depositions, upon the
same notice and service thereof as if the action was
pending therein. The motion shall state (a) the names
and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit
from each; and (b) the reason for perpetuating their
testimony. If the court finds that the perpetuation of
the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions
to be taken, and thereupon the depositions may be
taken and used in the same manner and under the
same conditions as are prescribed in these Rules for
depositions taken in pending actions. (7a, R134)
The petitioner shall serve a notice upon each person

named in the petition as an expected adverse party,
together with a copy of the petition stating that the
petitioner will apply to the court, at the time and place
stated therein;
At least 20 days before the date of hearing, the court shall
cause notice thereof to be served on the parties and
prospective deponents in the manner provided for in the
service of summons.
Sec. 4. Order and examination. If the court is satisfied
that the perpetuation of the testimony may prevent a
failure or delay of justice, it shall make an order
designating or describing the persons whose deposition
may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken
upon oral examination or written interrogatories. The
depositions may then be taken in accordance with Rule
23 before the hearing. (4a, R134)
Depositions are taken pending appeal with the view to their being
used in the event of further proceedings in the court of origin or
appellate court.
If the petition is granted, the court will now allow the deposition of
these people to be taken and they are taken simply by following
Rule 23.
For example, a party may perpetuate the testimony of a witness

which was objected by the adverse party and ruled out by the
court. If the appellate court should reverse the decision/order of
the lower court, it could admit the deposition as additional
evidence or remand the case back to the lower court for such
admission in accordance with Sections 4 and 5 of Rule 23 (Feria
2001, p. 537)
Sec. 5. Reference to court. For the purpose of applying

Rule 23 to depositions for perpetuating testimony, each
reference therein to the court in which the action is
pending shall be deemed to refer to the court in which
the petition for such deposition was filed. (5a, R134)
Q: What is deposition PENDING APPEAL?
Rule 23 says, the court in which the action is pending. But there is
still no pending action here. So it automatically refers to the court
in which the petition for the perpetuation was filed.
A: Obviously, there is a case already on appeal. So how do you

apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he
received a copy of the decision, he discovered a material witness
whom he failed to present. So this is a newly discovered evidence
(NDE). Had K known of his existence, he would have won the case.
So, K will file a motion for new trial based on NDE. If his motion is
granted, there will be new trial.
Sec. 6. Use of deposition. If a deposition to perpetuate

testimony is taken under this Rule, or if, although not
so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter
subsequently brought in accordance with the provisions
of sections 4 and 5 of Rule 23. (6a, R134)
But, if his motion is denied, K will appeal. While waiting for the
decision of the court, the witness tells him that he will be leaving
for Afghanistan and will come back no more. So, K will use Section
7. He will file a motion asking to take the deposition of a witness
pending appeal in the event that his motion for new trial is granted,
because the witness has to go and cannot wait for the new trial.
If deposition is taken under this Rule, it may be used in any action

involving the same subject matter subsequently brought.
Q: How do you use the perpetuation of testimony?
A: The same uses of an ordinary deposition for impeachment, for
any other purpose like the witness is already dead the same
under Rule 23. So the rule under Rule 23 is also applicable to Rule
24.
So in the event that if I win the appeal, the case will go back. I can
present the testimony because by that time he may already be
dead. In effect, para na ring deposition before appeal. So it is also
perpetuating the testimony of a possible witness, in the event the
appeal is decided in your favor. Thats why it is called deposition
pending appeal.
Sec. 7. Depositions pending appeal. If an appeal has

been taken from a judgment of a court, including the
Court of Appeals in proper cases, or before the taking of
an appeal if the time therefor has not expired, the court
283

Rule 25
Q2: What year did you introduce them?

Q3: Who are your witnesses? etc
INTERROGATORIES TO PARTIES
Now, under Rule 25, you are obliged to answer me also in writing.
Then you sign your answer and you swear to the truth of it. So I
will ask you directing a question How will you prove this? Who
are your witnesses? I will compel you to reveal the evidentiary
facts. And that process is called written interrogatories to parties.
Di para na ring deposition?
Q: Going back to Rule 23, what are the modes of deposition taking?
A: The following:
1)
2)
Deposition upon oral examination; and

Deposition upon written interrogatories.
I can also ask the same questions through deposition taking under
Rule 23. Why do I have to resort to Rule 25? The trouble is under
Rule 23, I need a deposition officer and I will have to course
everything to him. In Rule 25, there is no need of a deposition
officer. I will ask you a question and you will answer me. Both are
done directly. So, less expensive.
Purpose of written interrogatories:

To elicit facts from any adverse party (answers may also be used as
admissions of the adverse party).
Written interrogatories and the answers thereto must both be filed
and served. Hence, the answers may constitute as judicial
admissions (Sec. 4, R 129)
But take note, under Rule 25, you can only ask questions to your
opponent. You cannot ask questions to a stranger. Unlike in Rule
23, you can take the deposition of any person whether a party or
not. In Rule 25, the questioning is direct. Plaintiff questions the
defendant, defendant questions the plaintiff. So, these are the
differences between deposition upon written interrogatories and
interrogatories to parties.
Rule 25 should not be confused with Rule 23, Section 25 or

Deposition Upon Written Interrogatories.
In written interrogatories under Rule 23, questions are already
prepared beforehand and they are going to be submitted to a
deposition officer who will propound the questions to the
deponent and record the answers under oath.
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from

DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23).
EXAMPLE is, if you want to take the deposition of somebody

abroad through a deposition officer abroad. Of course, it would be
very expensive to go there and conduct an oral examination. So,
the best thing is to resort to deposition upon written
interrogatories under Rule 23.

1)
(Procedure) Under Rule 23 on Depositions upon

written interrogatories, the deposition is taken before a
deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no
deposition officer;
2)
(Procedure) Under Rule 23 on Depositions upon

written interrogatories, questions are prepared
beforehand. They are submitted to the deposition officer
who will ask the deponent the questions and he will
record the answers.; whereas
Under Rule 25 on Interrogatories to Parties, the
questioning is direct. Plaintiff questions defendant,
defendant questions the plaintiff. There is no third
person who will intervene; and
3)
(Deponent) Under Rule 23 on Depositions upon

written interrogatories, the deposition of any person
may be taken, whether he is a party or not, may be
taken; whereas
Rule 25 on Interrogatories to Parties applies to parties
only. You can send interrogatories only to parties. You
cannot ask question to a stranger.
4)
(Scope)
Under
deposition
upon
written
interrogatories (Sec. 25 R 23), there is direct, cross, redirect, re-cross examination but
under this rule there is only one set of interrogatories.
That is not the same as interrogatories to parties under this rule.

We are going to distinguish one from the other later.
Interrogatories mean written questions. EXAMPLE: I file a case
against Frudo. Frudo filed an answer and of course, he has his
affirmative defenses which are statements of ultimate facts. Alang
details, no evidentiary facts. But I am interested to find out what
are these evidentiary facts I will write a letter addressed to Frudo
under Rule 25 and direct him to answer the following
interrogatories:
According to your answer, you already paid, please answer the
following questions:
Q1: When did you pay?
Q2: Place?
Q3: Who was present when you paid?
Or
Q1: Mr. Frudo, you have been in continuous possession of this
piece of land for 30 years, would you kindly narrate the
improvements that you introduced in the property?
284

5)
(Period to answer) Under Rule 23, there is no fixed

time while under this rule the party concerned has 15
days to answer unless extended or reduced by the court.
SEC. 4. Number of Interrogatories - No party

may, without leave of court, serve more than
one set of interrogatories to be answered by
the same party. (4)
SEC. 1. Interrogatories to parties; service, thereof

Under the same conditions specified in section 1 of Rule
23, any party desiring to elicit material and relevant
facts from any adverse parties shall file and serve upon
the latter written interrogatories to be answered by the
party served or, if the party served is a public or private
corporation or a partnership or association, by any
officer thereof competent to testify in its behalf.
Only one set of interrogatories by the same party is allowed. Leave

of court is necessary for succeeding sets of interrogatories.
It means, I send to you interrogatories and I thought tapos na.
Then I remembered kulang pa pala iyon, so another set ahh hindi
na pwede! Dapat once lang unless the court allows me to send to
you another set.
Q: Is leave of court necessary to apply Rule 25? Do I have to apply

for a court permission before I can send interrogatories to
parties?
So, as a general rule, when you send questions to your opponent,

you better compile. Lahat ng gusto mong itanong, itanong mo na
because no party is given, as a rule, the privilege of securing more
than one set of interrogatories.
A: IT DEPENDS. The Rule says under the same conditions specified

in Section 1 of Rule 23. So the manner of resorting to
interrogatories are done under the same conditions for taking of
depositions.
1)
2)
SEC. 5. Scope and Use of Interrogatories Interrogatories may relate to any matters
that can be inquired into under section 2 of
Rule 23, and the answers may be used for the
same purposes provided in section 4 of the
same Rule (5a)
Without leave of court if an answer has already been

served:
With leave of court if no answer has been served, although
the court has already acquired jurisdiction over the
defendant. That is the same under the rule on deposition.
The reason is that, at that time, the issues are not yet
joined and the disputed facts are not yet clear.
Scope of the interrogatories

Q: What kind of questions can you ask under Rule 25 to your
opponent?
SEC. 2. Answer to Interrogatories - The interrogatories

shall be answered fully in writing and shall be signed and
sworn to by the person making them. The party upon
whom the interrogatories have been served shall file and
serve a copy of the answers on the party submitting the
interrogatories within fifteen (15) days after service
thereof, unless the courts, on motion and for good cause
shown, extends or shortens the time. (2a)
A: The same questions that you can ask in Rule 23 section 2:

1.)
2.)
anything that is related to the claim or defense provided

it is relevant; and
it is not privileged.
Use of the answers to interrogatories
The interrogatories shall be answered fully in writing and shall be

signed and sworn to by the person making them.
Q: Suppose there are already answers to the interrogatories given

by your opponent, how do you use those answers?
Answers cannot be made by an agent or attorney; answers not

made by the parties are nullities (Herrera vol. 2 p. 44)
A: They have the same uses under Rule 23 Section 4 you can use
it for impeachment, or any other purpose like to prove an
admission already made by the adverse party.
A judgment by default may be rendered against a party who fails to

answer written interrogatories.
SEC. 3. Objections to Interrogatories Objections to any
interrogatories may be presented to the court within
ten (10) days after service thereof, with notice as in
case of a motion; and answers shall be deferred until
the objections are resolved, which shall be at as early a
time as is practicable. (3a)
Since answers to interrogatories may be used for the same

purposes as depositions, they may also be the basis of a summary
judgment under Rule 35.
SEC. 6. Effect of Failure to serve written
interrogatories Unless thereafter allowed by
the court for good cause shown and to
prevent a failure of justice, a party not served
with written interrogatories may not be
compelled by the adverse party to give the
testimony in open court, or to give a
deposition pending appeal (n)
Q: Suppose you do not want to answer my questions because you

believe my questions are improper, you want to object to my
questions, what is your remedy?
A: You go to the court where the case is pending and object. Let
the court decide whether you will have to answer or not.
285

This is entirely a new section. It has no counterpart in the old rules.

Now, this is a very controversial section. Actually, you will not
understand this until you study Evidence where you can compel the
adverse party to testify. This is actually related to Rule 132, Sec. 10
(e) of the Rules of Evidence.
Under Section 6, if I intend during the trial to call him to the

witness stand, I am obliged to send him ahead written
interrogatories. I have to follow Rule 25. Now, if I do not send
written interrogatories to him, then I have no right to call him to
the witness stand. That is why Section 6 is a very radical provision.
Unless a party has been served written interrogatories, he may not

be compelled by the adverse party:
So, if I am the lawyer of a party, then binigla mo ako dahil there is

really that element of surprise as it has happened several times
before. The lawyer is caught by surprise when the opposing party
says that it would present the adverse party to the witness stand.
The lawyer is then caught off-guard as he has not talked to his
client yet.
1.
2.
to give testimony in open court; or

Give a deposition pending appeal.
The only exception is when the court allows it for good cause
shown and to prevent a failure of justice.
Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by

arguing that written interrogatories were not sent under Rule 25.
Hence, you can object to the opposing counsels motion to call
your client to the witness stand.
Note: The sanction adopted by the Rules is not one of compulsion

in the sense that the party is being compelled to avail of the
discovery mechanics, but one of negation by depriving him of
evidentiary sources which would otherwise have been accessible
to him.
This practically compels the lawyers to avail of the modes of

discovery because if you will not compel him, chances are Filipino
lawyers do not make much use of the modes of discovery. So now,
if the opposing counsel suddenly sends interrogatories to you, the
he must be planning to call you in the witness stand later.
This is related to the rule on Evidence particularly Rule 132, Section

10 [e]:
Rule 132, Sec. 10. Leading and misleading
questions. A question which suggests to the
witness the answer which the examining
party desires is a leading question. It is not
allowed except:
xxxxxx
xxxxxx
(e) of a witness who is an adverse party or an
officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party.
xxxxxx
Rule 132, Section 10 [e] is the provision in the Rules which
authorizes a party to call the adverse party to the witness stand. A
party may call the adverse party to the witness stand and
interrogate him by leading questions as an element of surprise. I
can call my opponent to the witness stand and he cannot refuse.
I can conduct direct examination on the adverse party and I am
entitled under the Rules to ask leading questions as if he is under
cross-examination because he is the adverse party. He is not
actually my witness. The purpose here is to actually secure
admissions from him while he is in the witness stand because
anything that he says against me does not bind me even if I were
the one who called him to the witness stand. But anything he might
say that is against himself binds him.
286

Rule 26
A:
1)
ADMISSION BY ADVERSE PARTY

Rule 26 is also known as REQUEST FOR ADMISSION. Admission by
adverse party or request for admission is similar to interrogatories.
You send questions to your opponent and hes bound to answer in
writing within 15 days under oath but the framing of the questions
are different.
2)
3)
The genuineness of any material and relevant document

described in and exhibited with the request and/or of
the truth of any material and relevant matter of fact set
forth in the request orin the request; or
a matter of fact not related to any documents may be
presented to the other party for admission or denial.
Q: When do you apply this mode of discovery?

In a request for admission, you are requiring the opposing party to
admit the truth or authenticity of certain documents. For example:
Do you admit the genuineness of the documents marked as Annex
A? We are talking here of DOCUMENTS which are NOT
ACTIONABLE because if the document is actionable then it has to
be pleaded properly.
A: At anytime after issues have been joined. Meaning, there is

already an answer.
Q: Is LEAVE OF COURT required under Rule 26?
A: It is totally UNNECESSARY but a request for admission under
Rule 26 can only be started according to Section 1, At any time
after issues have been joined. So it presupposes that there is
already an answer. Unlike in interrogatories, you can do it even
before an answer is served provided there is leave of court. This is
the second difference between Rule 25 and Rule 26.
In other words, if I have 20 documents, to find out whether you will

admit them or not, I will send you a copy and ask, Do you admit
the genuineness of this? Do you admit the truth?
So, the main difference between Rule 26 and Rule 25 is in the
framing of the question. If the question is framed in such a way
that the premise is laid down and I ask you whether or not you
admit, then the question is proper under Rule 26. BUT if the
question if framed in such a way that it is not answerable by yes or
no, then apply Rule 25.
Request for admission and actionable document

The former is proper when the genuineness of an evidentiary
document is sought to be admitted. If not denied under oath, its
genuineness is deemed impliedly admitted. Essentially it is a mode
of discovery; while the latter must be attached to the complaint or
copied therein. Its genuineness and due execution is deemed
impliedly admitted unless specifically denied under oath, by the
adverse party.
Example: Suppose my question is like this who was with you?

That is proper under Rule 25. Pero sabi ko, A and B were with you,
admitted? That is Rule 26. Kaya nga the way the questions were
framed determines wohat kind of mode of discover are you going
to apply.
Sec. 2. Implied admission. Each of the matters

of which an admission is requested shall be
deemed admitted unless, within a period
designated in the request, which shall not be
less than fifteen (15) days after service
thereof, or within such further time as the
court may allow on motion, the party to
whom the request is directed files and serves
upon the party requesting the admission a
sworn statement either denying specifically
the matters of which an admission is
requested or setting forth in detail the
reasons why he cannot truthfully either
admit or deny those matters.
Section 1. Request for admission. At any time

after issues have been joined, a party may file
and serve upon any other party a written
request for the admission by the latter of the
genuineness of any material and relevant
document described in and exhibited with
the request or of the truth of any material
and relevant matter of fact set forth in the
request. Copies of the documents shall be
delivered with the request unless copies have
already been furnished. (1a)
Purpose of written request for admission:
Objections to any request for admission shall

be submitted to the court by the party
requested within the period for and prior to
the filing of his sworn statement as
contemplated in the preceding paragraph
and his compliance therewith shall be
deferred until such objections are resolved,
which resolution shall be made as early as
practicable.(2a)
To expedite trial and relieve the parties of the costs of proving facts
which will not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry.
When request may be made:
At any time after the issues have been joined (after the
responsive pleading has been served).
Q: So, what will you request the other party to admit?
287

Implied admission. Each of the matters of which an admission is

requested shall be deemed admitted unless, within a period
designated in the request, which shall not be less than fifteen (15)
days after service thereof, or within such further time as the court
may allow on motion, the party to whom the request is directed
files and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why
he cannot truthfully either admit or deny those matters.
it because you already denied the promissory note under oath in

your answer. So you argue, Why do I have to deny it again under
Rule 26 when I already denied it under Rule 8? There is no need for
me to deny it all over again. I can also argue, Even if you denied it
under Rule 8, under Rule 26 you are obliged to deny it all over
again. Otherwise, you are deemed to have admitted the
genuineness and due execution of the document. Who is right
between the two of us?
ANSWER: There was an old decided case where the SC seemed to
imply that even if the matter is already denied in your pleading, if it
is reiterated under Rule 26 (request for admission) it has to be
denied all over again otherwise youre impliedly admitting it. To my
mind, that is already answered in the 1988 case of:
The remedy of the party, in this case, is to file a motion to be

relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal
effects of the request for admission since its materialty has not
been affected by the amendment.
PO vs. CA- 164 SCRA 668

Q: So, if I send to you a request for admission, what is your duty?
FACTS: There was an allegation made by the plaintiff in his
complaint which allegation was specifically denied in the answer.
Plaintiff asked the same question in a request for admission. Inulit
niya ang tanong and this time the defendant did not answer the
request for admission.
A: Within 15 days, you must answer my request under oath,

whether admitting or denying my request. Take note, under oath
also, parang interrogatories.
Q: Suppose you ignore my request within 15 days. You did not do
anything. You did not bother to file any answer to my request for
admission. What is the effect of failure to answer the request?
Now, under Section 2, if the party as requested to make an

admission does not make so within 15 days, the matter requested
is deemed admitted - impliedly admitted - that is the penalty.
A: You are deemed to have admitted. There is an implied admission

of all the things that I asked you to admit. Section 2 says, each of
the matters of which an admission is requested shall be deemed
admitted unless you file your answer to the request. Meaning, if
you will not answer my request, under the law, all the matters
which I request you to admit are deemed impliedly admitted. That
is the penalty for not bothering to file your reply under Rule 26.
If you do not want to respond to my request, everything that I

requested will be impliedly admitted. Now, you already denied the
allegation in my complaint specifically in your answer, I repeated it
in a request for admission and this time, you failed to respond.
Now, under Rule 26, the plaintiff can claim, Well, since you did not
respond, then it is already deemed admitted. Suppose the other
party would say, No, I already denied that in my answer. There is
no obligation for me to the deny the same all over again under Rule
26.
BAR QUESTION: A sends a request for admission to B and B made

an admission. However, during the trial, A did not offer in evidence
the answers to the request. Can the court take judicial notice of the
answers?
ISSUE: Is there a need for another denial in the request for

admission?
A: Based on THE OLD RULES, it would seem NO because a request

for admission is purely an extrajudicial matter between the parties.
But if the same question is asked NOW, the answer would be YES,
because under the NEW RULES, you are already required to file and
serve. Therefore the court may now take judicial notice because it
already forms part of the record.
HELD: NO NEED. When a matter is already effectively denied in the

pleading, then there is no need to ask it all over again. In other
words, what has already been denied is denied and therefore you
cannot say that for failure to deny it is already deemed admitted.
BAR QUESTION: Suppose, I will file a case against you and I will
attach to my complaint a Promissory Note actionable document.
In your answer, you deny the genuineness and due execution of the
Promissory Note. Meaning, as a defense you allege that your
signature is forged. There was a proper denial because it was
under oath.
A request for admission is not intended to merely reproduce or

reiterate the allegations of the requesting partys pleading but
should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to
establish said partys cause of action or defense. Unless it serves
that purpose, it is pointless, useless, and a mere redundancy.
After a week, I will now send to you a request for admission under
rule 26, where I attach the same promissory note, and I will ask
you, Do you admit the genuineness and due execution of this
promissory note? Now, when you receive the request, you ignore
If we have to answer the same question under the ruling in PO, it

would seem that the defendant is correct. Why do I have to deny,
if I have already denied it? So, there is no implied admission.
288

Sec. 3. Effect of admission. Any admission

made by a party pursuant to such request is
for the purpose of the pending action only
and shall not constitute an admission by him
for any other purpose nor may the same be
used against him in any other proceeding.(3)
says, Teka muna, what are you trying to prove? You should have
sent me a request for admission. And then you say that you forgot
to send one.
So, the adverse party here objects because he argues that I cannot
present evidence to prove something which he could have
admitted in a request for admission. This is something which the
party could have admitted had I resorted to a request for
admission under Rule 26, and since I did not, then he can now
prevent me from proving it.
Use: An admission under this Section is for the purpose of the

pending action only and cannot be used in other proceedings.
Section 3 is for the purpose of evidence. An admission made by a
party pursuant to a request for admission is only good for that
case. It cannot be used in any other case or proceeding. It limits
therefore the effectivity of an admission. It is only valid for the
pending case.
Hence, this is a very dangerous provision. Though, we still have to

see a judge applying this rule because it is practically placing the
other party in estoppel. Basically the argument will go like this:
NASTY MACK: Why did you not send me a request for admission?
Had you sent me, I would have easily admitted that but since you
did not, then I will bar you form proving it. (practically every fact
aimed to be proved can be objected to
Sec. 4. Withdrawal. The court may allow the

party making an admission under this Rule,
whether express or implied, to withdraw or
amend it upon such terms as may be just. (4)
BEN-DEATHA: How could I have known what facts you will admit
and not admit?
Admissions made, expressly or impliedly

(failure or refusal to respond) are
nevertheless binding.
NASTY MACK: Precisely, that is why you should have sent me a

copy, STUPID!
Q: Is the party admitting allowed to withdraw, change or amend

his previous admissions?
See how dangerous this provision is? I can bar you from proving
anything simply because you failed to avail of the modes of
discovery. This was not found in the Old Rules.
A: YES, but with leave of court.

Sec. 5. Effect of failure to file and serve request
for admission. Unless otherwise allowed by
the court for good cause shown and to
prevent a failure of justice, a party who fails
to file and serve a request for admission on
the adverse party of material and relevant
facts at issue which are, or ought to be,
within the personal knowledge of the latter,
shall not be permitted to present evidence on
such facts. (n)
Generally, matters which are objectionable should be pushed by

the party concerned or affected. That is because it is for his
benefit. I do not think it involves public policy thats why even if
you invoke it, the court may still refuse to apply it. Look at the
opening of the first paragraph: Unless otherwise allowed by the
court for good cause and to prevent a failure of justice. So thats
an exception.
So, even if you are correct, the judge may say that its too much.
Even if you invoke it, the judge may still say that there will be
failure of justice if he will apply it. With more reason, no judge will
use it if you will not invoke it. It is practically barring the party from
proving his case. That is why even if you invoke this, judges are very
careful not to apply this. So, you have to invoke this at least, to call
the attention of the judge though the judge may still refuse
because there might be a failure of justice.
This is one of the more controversial sections in the new Rules.

This is a mandatory mode of discovery. A party who FAILS to FILE
and SERVE a request for admission on the adverse party of material
and relevant facts in issue which are or ought to be within the
personal knowledge of the latter shall not be permitted to present
evidence on such facts. This is A VERY HARSH RULE a new rule
which again shows the intention of the law to compel the lawyers
to avail of the modes of discovery.
The only purpose I see for these is to compel the parties and
lawyers to avail of the Modes of Discovery.
Lets go to some interesting cases on request for admission.
An example of the section: Lets assume that there is a fact which I

want to prove and I know that you know but I do not know whether
youll admit it or not. Under the rules, I have to send you a request
for admission to confirm it.
REBONERIA vs. CA 216 SCRA 627 [1992]

FACTS: A request for admission was sent by a party (Plaintiff) to the
lawyer of the defendant (because anyway, under Rule 13, the
general rule is that everything should be coursed through the
Suppose I do not send you a request because anyway there are

very few lawyers who do that. So, I did not send a request and then
during the trial, I will just try to prove it. Then the adverse party
289

lawyer) So, the request was sent to the lawyer. Since there was no
response, can there be an implied admission?
HELD: NONE. In a request for admission, since we are questioning
the party, we should address it to him, and not to the lawyer. A
request for admission should be served upon the party, not his
counsel. The general rule under Rule 13 cannot apply where the
law expressly provides that notice must be served upon a definite
person.
In such cases, service must be made directly upon the person
mentioned in the law and upon no other in order for the notice to
be valid.
But the case of REBONIA should not be confused with the case of
PSCFC FINANCING CORP. vs. CA - 216 SCRA 838 [1992]
FACTS : A request for admission was sent to a party. The party told
his lawyer to answer the request. So, it was the lawyer who
answered the request for admission under oath.
ISSUE: Was there an effective answer or reply to the request for
admission as it was the lawyer who made the reply ?
HELD: YES, because under the Rules, a client can always act
through the lawyer and he is bound by the actuations of his lawyer.
This is practically the rule on Agency. If we will say that the lawyer
has no authority even if ordered by the client, then we are altering
the Rules on Agency and also the rule that the lawyer can always
act in behalf of his client.
And assuming that a lawyer is not authorized to make the
complaint, then why is the adverse party the one complaining? It is
the client who has the authority to impugn the acts of his lawyer
and not the adverse party. Timang!!
Principles to remember in the case of REBONERIA and PSCFC:
1.)
2.)
A request must be directed to the party whose

admission is sought. Service of request to any other
person is not a valid request at all.
A request must always be directed to the party
whose admission is sought, but the latter may delegate
to his lawyer the right to answer the request. Such is
valid so long as there is a valid authorization.
290

Rule 27
EXAMPLE: Harry Potter sued Voldemortz. The case involves

accounting. Voldemortz is in possession of several invoices and
receipts which he would present in trial. Harry wants to get hold of
and inspect all these documents. Since these are not actionable
documents, Voldemortz is not required to show or include them in
the pleadings. No need to plead. So, Harry want to see these
books, photographs, accounts, objects which Harry know
Voldemortz will present during the trial. If Harry will ask
Voldemortz to show these things, I don't think Voldemortz will
accommodate Harry.
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
SEC. 1. Motion for Production or inspection;

order Upon motion of any party showing
good cause therefore, the court in which an
action is pending may (a) Order any party to
produce and permit the inspection and
copying or photographing by or on behalf of
the moving party, of any designated
documents, papers, books, accounts, letters,
photographs, objects or intangible things, not
privileged which constitute or contain
evidence material to any matter involved in
the action and which are in his possession,
custody or control; or (b) Order any party to
permit entry upon designated land or other
property in his possession for control for the
purpose of inspecting, measuring, surveying
or photographing the property or any
designated relevant object or operation
thereon. The order shall specify the time,
place and manner of making the inspection
and taking copies and photographs, and may
prescribe such terms and conditions as are
just (1a)
Q: In the above example, what is the remedy of Harry?

A: Harry will apply Rule 27 by filing a motion in court stating that
Voldemortz is in the possession of such documents and Harry
would like to see, inspect or have them copied, provided they are
relevant and not privileged. And the court will issue an order
directing Voldemortz on a specified time on place to bring them for
purposes of inspection, survey, copying, photocopying, etc.
Voldemortz have no choice but to show Harry all these objects.
EXAMPLE: Harry sued Voldemortz for recovery of ownership of
land. Voldemortz in possession and such is in a position to enable
to properly describe the land and all its improvements. Harry would
like to see the property to inspect and survey the same.
Q: What is Harrys remedy?
A: File a motion in court to permit him (Harry) to enter the land for
purposes of inspecting, measuring, surveying or photographing the
property. And the court will issue an order specifying the time,
place and the manner of inspection. Now, Harry will have an
access to the documents, things, land, etc. which are under
Voldemortzs control or possession.
This Rule applies only to a pending action and the things or

documents subject of the motion must be only those within the
possession, control, or custody of a party.
Production of documents affords more opportunity for discovery
than a subpoena duces mecum as will be shown later when the two
are distinguished.
Q: Give the requisites of production or inspection of

documents or things (Rule 27)?
A: The following are the requisites:
However, the rule is not intended for use as a dragnet or any

fishing expedition.
1)
The documents to be produced:

1)
2)
2)
3)
should not be privileged;

should constitute or contain evidence material to any
matter involved in the action, and which are in his (the
party ordered's possession, custody, or control).
4)
5)
In a petition for the production of papers and documents they must

be sufficiently described and identified. Otherwise, the petition
cannot prosper.
6)
This mode of discovery does not authorize the opposing party or

the clerk or other functionaries of the court to distrain the articles
or deprive the person who produced the same of their possession,
even temporarily (Tamda vs. Aldaya, L-13423, Nov. 23, 1959)
A motion (leave of court) must be filed by a party

showing good cause therefor;
Notice of the motion must be given to all other parties;
The motion must sufficiently describe the document or
thing sought to be produced or inspected;
The document or thing sought to be produced or
inspected must constitute or contain evidence material
to the pending action;
inspected must not be privileged; and
inspected must be in the possession of the adverse party
or, at least, under his control. (Section 1, Rule 27; Lime
Corp. vs. Moran, 59 Phil. 175; Alvero vs. Dizon, 76 Phil.
637)
NOTE: Rule 27 is not the same as Rule 21 on subpoena duces

tecum. Therefore, the next question is:
291

Q: Distinguish Production or Inspection of Documents or Things

under Rule 27 from Subpoena duces tecum under Rule 21.
1.)
Rule 27 is essentially a mode of discovery (simply to

discover), whereas
Rule 21 on subpoena duces tecum is a means of
compelling production of evidence which must be
brought to court;
2.)
Rule 27 is limited to parties in the action, whereas

Rule 21 on subpoena duces tecum may be directed to
any person, whether a party or not;
3.)
The order under Rule 27 is issued only upon motion with

notice to the adverse party, whereas
A subpoena duces tecum under Rule 21 may be issued
upon an ex-parte application.
Section 24 of Rule 130 draws the types of disqualifications by

reason of privileged communication, to wit:
(a)
(b)
(c)
(d)
(e)
Communications between husband and wife;

Communications between attorney and client;
Communication between physician and patient;
Communication between priest and penitent;
Public officers and public interest.
There are, however, other privileged matters that are not

mentioned by Rule 130. Among them are the following:
a)
b)
c)
d)
e)
Editors may not be compelled to disclose the

source of published news;
Voters may not be compelled to disclose for whom
they voted;
Trade secrets;
Information contained in tax census returns; and
Bank deposits.
Case:
Air Philippines vs. Pennswell, Inc. GR No. 172835, December 13,
2007
292

Rule 28
physical or medical examination by a doctor to test

whether the allegation is true or not;
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This is the fifth and last mode of discovery
c)
annulment of contract on the ground of insanity at the

time of execution (lack of consent);
d)
Physical disability due to quasi-delicts (e.g. vehicular

accident). If I am the defendant and I believe that you
are merely exaggerating the extent of your injury so that
your claim for damages will be higher, and diskumpiyado
ako sa doctor mo, I will ask the court to issue an order
for you to undergo physical examination by another
doctor, so that we will know whether your claim is really
valid or not.
e)
the mental condition of a party is in controversy in

proceedings for guardianship over an imbecile or insane
person, while the physical condition of a party is
generally involved in physical injuries cases.
This mode of discovery is available in an action in which the mental

or physical condition of a party is in controversy.
So in order to even things, I will have to request you to submit to a
neutral doctor or psychiatrist for a physical or mental examination.
So the court will issue an order. For example, damage suit in
damage cases, the plaintiff may be exaggerating his injuries.
The only way to confirm it is to have another doctor examine him
to find out whether his injury is really genuine or sinadya may be
for the purpose of securing a bigger amount of damages.
Remember the joke which we mentioned in Evidence about the
plaintiff who met an accident na na-dislocate yung shoulder, so
permanent ang injury. So when he testified in court, he was asked
to raise his arm higher, higher please! No more the injury is
permanent.
Since the results of the examination are intended to be made

public, the same are not covered by the physician-patient privilege
(Sec. 24b, R 130).
Q: Give the requisites of physical and mental examination of
persons under Rule 28:
Sabi ng court, So that was after the accident. What about before
the injury? How high can you raise your arm? A, ganito o! So there
is no more need for a physical examination because he has already
demonstrated it (he was just exaggerating his injury).
A: The following are the requisites:

1)
2)
3)
SEC. 1. When Examination may be ordered In

an action in which the mental or physical
condition of a party is in controversy, the
court in which the action is pending may in its
discretion order him to submit a physical or
mental examination by a physician (1)
4)
Sec. 3. Report of findings. - If requested by the

party examined, the party causing the
examination to be made shall deliver to him a
copy of a detailed written report of the
examining physician setting out his findings
and conclusions. After such request and
delivery, the party causing the examination
to be made shall be entitled upon request to
receive from the party examined a like report
of any examination, previously or thereafter
made, of the same mental or physical
condition. If the party examined refuses to
deliver such report, the court on motion and
notice may make an order requiring delivery
on such terms as are just, and if a physician
fails or refuses to make such a report the
court may exclude his testimony if offered at
the trial. (3a)
SEC. 2. Order for examination The order for

examination may be made only upon motion
for good cause shown and upon notice to the
party to be examined and to all other parties,
and shall specify the time, place, manner,
conditions, and scope of the examination and
the person or persons by whom it is to be
made. (2)
Rule 28 applies in all actions where the mental or physical
condition of a party is in question or controversy.
EXAMPLES:
a)
b)
The physical or mental condition must be a subject of

controversy of the action;
A motion showing good cause must be filed; and
Notice of the motion must be given to the party to be
examined and to all other parties;
the motion shall specify the time, place, manner,
conditions, and scope of the examination and the person
or persons by whom it is made.
Declaration of nullity of marriage on the ground

psychological incapacity. Under the Family Code,
however, the state of psychological incapacity must not
have been existing only now for the first time. It must
have existed at the time of the marriage;
Sec. 4. Waiver of privilege. - By requesting and

obtaining a report of the examination so
ordered or by taking the deposition of the
annulment of marriage on the ground of impotency. The

court can issue an order to subject the party to undergo
293

examiner, the party examined waives any

privilege he may have in that action or any
other involving the same controversy,
regarding the testimony of every other
person who has examined or may thereafter
examine him in respect of the same mental
or physical examination. (4)
Where the party examined requests and obtains a report on the
results of the examination, the consequences are:
1)
2)
he has to furnish the other party a copy of the report of

any previous or subsequent examination of the same
physical and mental examination; and
he waives any privilege he may have in that action or any
other involving the same controversy regarding the
testimony of any other person who has so examined him
or may thereafter examine him.
Example: Maya is subjected to examination by a doctor upon

motion by Dino under Rule 28. So Maya asks for a copy of the
finding after examination. When Maya asks for the finding, Dino
can also ask for Mayas examination by the personal doctor of
Maya, previously made or thereafter.
The doctor cannot be compelled to relay what the patient told her.
So if the doctor refuses to deliver such report, then under Section
3, he cannot testify. He cannot give evidence.
Also, once a party asks for a report of the examination, he
automatically waives the privilege of physician-patient relationship.
So if Maya does not want to waive the privilege, she should not ask
a copy of the report of the physician.
Q: Going back to the different modes of discovery, when is leave of
court required? Not required?
A: In the following cases:
1.) Depositions
pending action, no answer filed yet
pending action, answer filed already
before action or pending appeal
2.) Interrogatories
no answer filed yet
answer filed already
3.) Request for admission
4.) Production or Inspection of Documents or
Things
5.) Physical and Mental Examination of Persons
REQUIRED
NOT REQUIRED
REQUIRED
REQUIRED
NOT REQUIRED
NOT REQUIRED
REQUIRED
REQUIRED
294

Rule 29
an order to compel an answer. The same

procedure may be availed of when a party or
a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Rule 29 forms part of the study of the modes of discovery. The
policy on modes of discovery is that it is allowed and encouraged
to determine, at an earlier time, essential issues and to promote
settlement or expeditious trial.
If the application is granted, the court shall

require the refusing party or deponent to
answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may
require the refusing party or deponent or the
counsel advising the refusal, or both of them,
to pay the proponent the amount of the
reasonable expenses incurred in obtaining
the order, including attorney's fees.
REPUBLIC vs. SANDIGANBAYAN 204 SCRA 212

HELD: It appears to the Court that among far too many lawyers
(and not a few judges), there is, if not a regrettable unfamiliarity
and even outright ignorance about the nature, purposes and
operation of the modes of discovery, at least a strong yet
unreasoned and unreasonable disinclination to resort to them
which is a great pity for the intelligent and adequate use of the
deposition-discovery mechanism, coupled with pre-trial procedure,
could, as the experience of other jurisdictions convincingly
demonstrates, effectively shorten the period of litigation and speed
up adjudication.
If the application is denied and the court

finds that it was filed without substantial
justification, the court may require the
proponent or the counsel advising the filing
of the application, or both of them, to pay to
the refusing party or deponent the amount of
the reasonable expenses incurred in opposing
the application, including attorney's fees. (1a)
Evidentiary matters may be inquired into and learned by the

parties before the trial. The desideratum is that civil trials should
not be carried on in the dark. The Rules of Court make this ideal
possible through the deposition-discovery mechanism set forth.
The experience in other jurisdictions has been that ample discovery
before trial, under proper regulation, accomplished one of the
most necessary ends of modern procedure: it not only eliminates
unessential issues from trials thereby shortening them
considerably, but also requires parties to play the game with the
cards on the table so that the possibility of fair settlement before
trial is measurably increased.
SEC. 2. Contempt of court. - If a party or other

witness refuses to be sworn or refuses to
answer any question after being directed to
do so by the court of the place in which the
deposition is being taken, the refusal may be
considered a contempt of that court. (2a)
SEC. 3. Other consequences. - If any party or
an officer or managing agent of a party
refuses to obey an order made under section
1 of this Rule requiring him to answer
designated questions, or an order under Rule
27 to produce any document or other thing
for inspection, copying, or photographing or
to permit it to be done, or to permit entry
upon land or other property, or an order
made under Rule 28 requiring him to submit
to a physical or mental examination, the
court may make such orders in regard to the
refusal as are just, and among others the
following:
The various modes or instruments of discovery are meant to serve

(1) as a device, along with the pre-trial hearing under Rule 18, to
narrow and clarify the basic issues between the parties, and (2) as a
device for ascertaining the facts relative to those issues.
Hence, the deposition-discovery rules are to be accorded a broad
and liberal treatment. No longer can the time-honored cry of
fishing expedition serve to preclude a party from inquiring into
the facts underlying his opponents case. Mutual knowledge of all
the relevant facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the other to
disgorge whatever facts he has ill his possession. The depositiondiscovery procedure simply advances the stage at which the
disclosure can be compelled from the time of trial to the period
preceding it, thus reducing the possibility, of surprise.
(a)
An order that the matters
regarding which the questions were asked, or
the character or description of the thing or
land, or the contents of the paper, or the
physical or mental condition of the party, or
any other designated facts shall be taken to
be established for the purposes of the action
in accordance with the claim of the party
obtaining the order;
SEC. 1. Refusal to answer. - If a party or

other deponent refuses to answer any
question upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of the
question may prefer. The proponent may
thereafter apply to the proper court of the
place where the deposition is being taken, for
295

(b)
An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or prohibiting
him from introducing in evidence designated
documents or things or items of testimony, or
from introducing evidence of physical or
mental condition;
might as well admit it. Do not put the other party into trouble for
you might be held liable for the expenses later on.
SEC. 5. Failure of party to attend or serve
answers. - If a party or an officer or managing
agent of a party willfully fails to appear
before the officer who is to take his
deposition, after being served with a proper
notice, or fails to serve answers to
interrogatories submitted under Rule 25 after
proper service of such interrogatories, the
court on motion and notice, may strike out all
or any part of any pleading of that party, or
dismiss the action or proceeding or any part
thereof, or enter a judgment by default
against that party, and in its discretion, order
him to pay reasonable expenses incurred by
the other, including attorney's fees. (5)
(c)
An order striking out pleadings or
parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party; and
(d)
In lieu of any of the foregoing
orders or in addition thereto, an order
directing the arrest of any party or agent of a
party for disobeying any of such orders
except an order to submit to a physical or
mental examination. (3a)
Section 5 is identical to previous consequences. If a party is served

with interrogatories and he refuses to answer under Rule 25, he
can be penalized with the ultimate penalty of dismissal of the case
or judgment by default. Thus, the ultimate effect is that, a party
who refuses to cooperate may lose the case ultimately.
These are other consequences in addition to Section 1. These refer

to the refusal to obey an order under Rule 27 and Rule 28 which
can even cost your case. The court will make an order that would
make the disobedient party suffer. If he is the plaintiff, his
complaint will be stricken out.
Normally, default judgment applies only to a defendant who failed

to file an answer. But Rule 29 allows a default judgment even if
you filed an answer for failure to comply with the modes of
discovery. So, this is one instance when a judgment by default can
be rendered against a defendant who filed an answer.
Or if he is the defendant, judgment of default can be rendered

against him although the judgment of default can only be done if
he failed to file an answer. But his refusal to comply with a mode of
discovery is the exception to the case. This is one instance when a
judgment by default can be rendered against a defendant who filed
an answer.
And that is the worst penalty for refusing to
cooperate.
INSULAR LIFE ASSURANCE CO., LTD. vs. CA 238 SCRA 88 [1994]

FACTS: There was a refusal here of one party to answer an
interrogatory. So the other party asked the court to issue an order.
The court then ordered the other party to answer, but he still
refused.
SEC. 4. Expenses on refusal to admit. - If a

party after being served with a request under
Rule 26 to admit the genuineness of any
document or the truth of any matter of fact,
serves as sworn denial thereof and if the
party requesting the admissions thereafter
proves the genuineness of such document or
the truth of any such matter of fact, he may
apply to the court for an order requiring the
other party to pay him the reasonable
expenses incurred in making such proof,
including attorney's fees. Unless the court
finds that there were good reasons for the
denial or that admissions sought were of no
substantial importance, such order shall be
issued. (4a)
So, the plaintiff filed a motion for judgment of default against the
defendant (or dismissal of the case) citing Section 5 where if one
refuses to cooperate, the case will be dismissed or a judgment of
default can be rendered against the party.
But the judge ruled that the case shall continue. The party now
went to the SC contending that the judge committed a grave abuse
of his discretion in refusing to apply the sanctions allowed by law.
HELD: While it is true that there are sanctions allowed by law in
cases of refusal to comply with the modes of discovery, the same is
DISCRETIONARY. Meaning, let the court decide whether justice will
be served by going to trial or not. So there was no grave abuse of
discretion on the part of the judge.
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
Section 4 pertains to Rule 26 on request for admission. If X was

able to prove something that Y refused to admit, Y can be held
liable for expenses and attorney's fees for refusing to admit
something which turned out to be true. If it is something true, you
296

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. It is only in clear cases of grave abuse of
that discretion when appellate courts will interfere in their
judgment.
1)
2)
3)
4)
5)
6)
In other words, courts are still given the leeway of whether or not
to apply the ultimate sanctions.
7)
NOTE: The ruling in this case was reiterated in the 1996 case
of SANTIAGO LAND DEVELOPMENT CO. vs. CA, July 9, 1996
(258 SCRA 535) and the 1998 case of DELA TORRE vs. PEPSICOLA PRODUCTS, October 30, 1998 (298 SCRA 363)
D.
FORTUNE CORPORATION vs. CA 229 SCRA 355
E.
ISSUE: Are the 5 modes of discovery cumulative or exclusive?

Can a party resort to any modes of discovery or are they
intended to be an exclusion of the other?
1)
2)
3)
4)
HELD: The various methods of discovery as provided for in

the Rules are clearly INTENDED TO BE CUMULATIVE, as
opposed to alternative or mutually exclusive.
Under the present Rules the fact that a party has resorted to
a particular method of discovery will not bar subsequent use
of other discovery devices, as long as the party is not
attempting to circumvent a ruling of the court, or to harass or
oppress the other party.
strike out all or any part of any pleading of disobedient

party;
dismiss the action or proceeding or any part thereof;
enter a judgment by default against disobedient party;
order payment of reasonable expenses incurred by the
other including attorney's fees.
Where a party refuses to answer a particular question in the set of

written interrogatories and despite an order compelling him to
answer, still refuses to obey the order, Sec. 3(c) will apply (Zepeda
vs. China Bank GR No. 172175, Oct. 9, 2006).
Refusal to comply with modes of discovery and sanctions
Expenses and attorney's fees are not to be imposed upon the

Republic of the Philippines.
A.
Refusal to answer any question - - 1. the court may, upon

proper application, compel a refusing deponent to answer
(sec. 1)
a) if granted and refusal to answer is without substantial
justification, the court may require the refusing party to
pay the proponent the amount of the reasonable
expenses incurred in obtaining the order, including
attorney's fees;
b) if denied and filed without substantial justification, the
court may require the proponent to pay the refusing
party the amount of the reasonable expenses incurred in
obtaining the order, including attorney's fees.
The consequences under Sec. 5 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
court, Sec. 3 of Rule 29 will apply (Cepeda v. China Banking
Corporation GR No. 172175, October 9, 2006).
The following are the consequences provided for in Sec. 3:
a refusal to answer after being directed to do so may be

considered as contempt of court. (Sec. 2)
C.
Refusal to admit under Rule 26 (Sec. 4) - - - the court,

upon proper application, issue an order requiring the
other party to pay him reasonable expenses incurred,
including attorney's fees;
Failure of Party to attend or serve answers to written
interrogatories (sec. 5) - - - the court, on motion and
notice:
If a party refuses to answer the whole written interrogatories,

Sec. 5 of R 29 applies.
Summary:
B.
prohibit the disobedient party from introducing

evidence of physical or mental condition;
refuse to allow the disobedient party to support or
oppose claims or defenses;
strike out pleadings or parts thereof;
stay further proceedings;
dismiss the action or proceeding or any part
thereof;
render a judgment by default against disobedient
party;
direct the arrest of any party or agent of a party
disobeying any of such orders except an order to
submit to a physical or mental examination;
A)
B)
Refusal to be sworn - - - cite the deponent in contempt of

court;
Refusal to answer designated questions or refusal to
produce documents or to submit to physical or mental
examination (Sec. 3) - - - the court may make the following
orders:
C)
The court may issue an order striking out pleadings or

parts thereof;
The court may issue an order staying further proceedings
until the order is obeyed; or
The court may issue an order rendering a judgment by
default against the disobedient party.
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
297

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 vs. China Banking Corporation)
Q: To summarize, what are the instances when a defendant shall
be considered in default even if such defendant has already filed
an answer?
A: The following are the instances:
1)
2)
Failure to appear at the pre-trial conference (Rule 18);

and
Failure to cooperate in the mode of discovery (Section 5,
Rule 29).
298

Rule 30
a)
TRIAL
b)
Section 1. Notice of trial. Upon entry of a case
in the trial calendar, the clerk shall notify the
parties of the date of its trial in such manner
as shall ensure his receipt of that notice at
least five (5) days before such date. (2a, R22)
c)
d)
e)
Of course, after the Pre-trial, the next step now is trial. And it is the
duty of the clerk of court to send notices to the parties about the
date of the trial in such manner as shall insure his receipt of that
notice at least five (5) days before such date. But actually in real
practice, it will even take more than a month to give you ample
time to prepare for it.
f)
g)
Now, it is mandatory that the notice should reach the party or its
lawyer at least five (5) days before such date.
Where the pleadings of the parties tender no issue at all,

a judgment on the pleadings may be directed by the
court (Rule 34).
Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35);
Where the parties have entered into a compromise
agreement either during the pre-trial or while the trial is
in progress (Rule 18; Art. 2028 NCC);
Where the complaint has been dismissed with prejudice
(Sec. 5 R 16; Sec. 3 R 17; Sec. 5, last par. R 7);
Where the case falls under the operation of the Rules on
Summary Procedure; and
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 R 30).
when there is a judgment on confession.
Sec. 2. Adjournments and postponements. A
court may adjourn a trial from day to day,
and to any stated time, as the expeditious
and convenient transaction of business may
require, but shall have no power to adjourn a
trial for a longer period than one month for
each adjournment, nor more than three
months in all, except when authorized in
writing by the Court Administrator, Supreme
Court. (3a, R22)
Q: Define trial.
A: TRIAL is an examination before a competent tribunal of the facts
or law put in issue in a case, for the purpose of determining such
issue. (Ballentines Law Dict., 2nd Ed., p. 1299)
It is the judicial process of investigating and determining the legal
controversies, starting with the production of evidence by the
plaintiff and ending with his closing arguments (Acosta v. People 5
SCRA 774).
A court may adjourn a trial from day to day means that if the
trial is not finished on the scheduled date, that will be postponed
on another day. That is how trials are being conducted. It is by
staggered basis. That is what you call adjournment. But everything
is recorded anyway. If you look at the transcript of stenographic
notes, it would seem that the trial is continuous because
everything unfolds there. But actually, these occurred on different
dates.
In a trial, there is always an issue where we cannot agree.

Therefore, the purpose of a trial is for the court to resolve that
issue.
Trial and Hearing
The terms trial and hearing are sometimes interchangeably
used. There is however, a marked difference between these terms.
Trial refers to the stage of presentation of evidence and other
processes; it is the period for the presentation of evidence by both
parties.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 pre-trial and the
determination of granting or denying a motion (Trocio v. Labayo 53
SCRA 97). Hearing does not necessarily imply presentation of
evidence in open court but the parties are afforded the opportunity
to be heard.
Now, Section 2 also provides that no party shall be allowed a

postponement of more than one (1) month per postponement and
not more than three (3) postponements in all.
As a GENERAL RULE: Not more than one (1) month for each
adjournment BUT only for a maximum of three (3) months in all or
not beyond 90 days except when authorized in writing by the court
administrator of the Supreme Court.
And that jives with the SC Circular 3-90 which contains a mandatory
continuous trial for 90 days. In other words, the case must
terminate in 90 days.
General rule: when an issue exists, trial is necessary. Decisions

should not be made without trial.
The ONLY EXCEPTION is when authorized in writing by the court

administrator. Meaning, the judge can go to the court
administrator to allow the court to go beyond the period allowed
by law.
When trial is not necessary

A civil case may be adjudicated upon without the need for a trial in
any of the following cases:
299

Sec. 3. Requisites of motion to postpone trial

for absence of evidence. A motion to
postpone a trial on the ground of absence of
evidence can be granted only upon affidavit
showing the materiality or relevancy of such
evidence, and that due diligence has been
used to procure it. But if the adverse party
admits the facts to be given in evidence, even
if he objects or reserves the right to their
admissibility, the trial shall not be postponed.
(4a, R22; Cir. No. 39-98)
ADVERSE PARTY: OK. Admitted. I admit that if he is here, this is

what he will say, Although I may object to the admissibility of such
testimony.
Generally, there are two main reasons why parties ask for
postponement. One is,
So, I admit that, although I reserve my right to its admissibility.

Then in such case, you have no more reason for postponement
because in the first place, there is no need to present your witness
because the other party already admitted what will be the
substance of his testimony.
Meaning, the other party may admit the evidence but object to its
admissibility. That is two different things admitting the evidence
but objecting to its admissibility in court. Meaning, objecting to the
admissibility of the witness in court. Just like under the
Constitution, if a confession is made by a suspect without being
afforded with the Miranda warnings, such confession is not
admissible. But such confession is evidence. Only, it is inadmissible.
(1) absence of evidence like when the witness is not

available or the document is not available, or
(2) somebody is sick either the party or counsel is sick.
Sec. 4. Requisites of motion to postpone trial

for illness of party or counsel. A motion to
postpone a trial on the ground of illness of a
party or counsel may be granted if it appears
upon affidavit or sworn certification that the
presence of such party or counsel at the trial
is indispensable and that the character of his
illness is such as to render his nonattendance excusable. (5a, R22)
Requisites:
1)
2)
A motion for postponement stating the ground relied

upon must be filed; and
the motion must be supported by an affidavit showing:
a. the materiality and relevancy of such evidence; and
b. that due diligence has been used to procure it.
If the adverse party admits the facts to be given in evidence, the

trial will not be postponed even if he objects or reserves the right
to object to their admissibility (Feria, Civil Procedure Annotated
Vol. 1, p. 565)
Requisites:
1)
A motion for postponement stating the ground relied

upon must be filed; and
2) the motion must be supported by an affidavit or sworn
certification showing:
a. the presence of such party or counsel at the trial is
indispensable; and
b. that the character of his illness is such as to render
his non-attendance excusable.
Note: This section does not apply to criminal cases as the rule on
postponements in criminal cases is governed by Sec. 2 R 119.
Now, of course the requirements of the Rules are really strict
although courts and lawyers are very liberal on this. First of all, if
you want to postpone a trial on the ground of absence of evidence,
there must be a verified affidavit. The affidavit must show the
materiality or relevancy of the evidence which is not available and
that due diligence was used to procure it. In other words, you tried
your best to secure it earlier.
Postponements are addressed to the sound discretion of the court.

In the absence of grave abuse of discretion, it cannot be controlled
by mandamus (Olsen vs. Fressel & Co., GR No. 12955, Nov. 8,
1917).
Now, what is the meaning of the second sentence: If the adverse

party admits the facts to be given in evidence, even if he objects or
reserves the right to their admissibility, the trial shall not be
postponed?
The same thing for illness (2nd ground). Kung may sakit, there must
be affidavit or sworn statement. So you must have a sworn medical
certificate and that the presence of such party or counsel is
indispensable and the character of his witness is such as to render
his non-attendance excusable.
EXAMPLE:
Now, of course the SC has already stated in some cases that when
the sickness is sudden and unexpected such as caused by an
accident, you cannot require on the spot a medical certificate.
Meaning, how can I produce something if he got sick only an hour
ago? So, the court should take that into consideration. They cannot
object to the requirement of medical certificate.
LAWYER: We are asking for postponement because our witness is

not present. He is not available and his testimony will be very
material.
ADVERSE PARTY: Alright, what is going to be his testimony? What
will he testify about in court?
LAWYER: Well, this is his testimony . he will prove this or he will
prove that.
300

So, a motion for postponement which is not verified upon the

ground of illness of a party or counsel without a medical certificate
should be granted if it appears that the claim of the movant is
meritorious.
good reasons and in the furtherance of

justice, permits them to adduce evidence
upon their original case; and
Normally, we just say that if the other party insists on a medical

certificate, we will submit it this afternoon or tomorrow because
there are things in which we cannot get a medical certification on
time unless he has been sick for so long.
(g) Upon admission of the evidence, the case

shall be deemed submitted for decision,
unless the court directs the parties to argue
or to submit their respective memoranda or
any further pleadings.
In the ultimate analysis, what is the policy of the SC on

postponements? Motions for postponements is always addressed
to the sound discretion of the court (Casilan vs. Gancayco, 56 O.G.
2799, March 28, 1960; People vs. Martinez, 57 O.G. 7923, Oct. 30,
1961).
If several defendants or third-party

defendants, and so forth, having separate
defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence. (1a, R30)
So if the motion for postponement is denied or granted or either

way, it is so hard to have it overturn because the SC will always give
way to the discretion and rarely will it happen in court where it will
interfere without discretion unless there is grave abuse of
discretion.
Take note that the law says the trial shall be limited to the issues
stated in the pre-trial order. That is now emphasized under the
Rule 30. That jives with Rule 18, Section 7 on what is the
importance of a pre-trial order:
Sec. 7. Record of pre-trial. - The proceedings
in the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue an
order which shall recite in detail the matters
taken up in the conference, the action taken
thereon, the amendments allowed to the
pleadings, and the agreements or admissions
made by the parties as to any of the matters
considered. Should the action proceed to
trial, the order shall explicitly define and limit
the issues to be tried. The contents of the
order shall control the subsequent course of
the action, unless modified before trial to
prevent manifest injustice. (5a, R20)
ORDER OF THE TRIAL
The order of trial in civil cases is a little bit more complicated

compared to criminal cases.
Sec. 5. Order of trial. Subject to the provisions
of section 2 of Rule 31, and unless the court
for special reasons otherwise directs, the trial
shall be limited to the issues stated in the
pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in
support of his complaint;
The pre-trial order shall limit the issues and shall control the
subsequent course of the action. We already emphasized that the
pre-trial order prevails over the pleadings. The pre-trial order has
the effect of superseding the complaint and the answer. Whatever
issues are stated in the pre-trial order shall be the issues to be tried
during the hearing on the case.
(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;
Now going back to Rule 30, that is now emphasized. The trial shall
be limited to the issues stated in the pre-trial order. So, the pretrial order will be a very important document to determine what
are the issues to be tried.
(d) The fourth-party, and so forth, if any, shall

adduce evidence of the material facts
pleaded by them;
Q: How will the trial proceed? In what order?
(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;
A: Section 5, paragraphs [a] to [g], including the last paragraph of

Section 5.
Q: What is the reason for the rule prescribing an order of trial?
A: The reason is for orderly procedure, which must be followed if
injurious surprises and annoying delays in the administration of
(f) The parties may then respectively adduce

rebutting evidence only, unless the court, for
301

justice are to be avoided. Evidence cannot be given piece-meal.

(Dir. of Lands vs. Archbishop of Manila, 41 Phil. 120)
ISSUE: Can the defendant present his evidence first?

HELD: AH YES! Anyway, by admitting the obligation, you are
invoking the affirmative defense of payment. So, it is
incumbent upon you to prove that it is paid.
You will notice the order of trial in civil cases follows more or less
the same pattern with the trial in criminal case. The pattern is the
same although there may be cross-claims, third (fourth, etc.) party
complaints, especially when there are more than one defendant.
Under Rule 16, the defendant is not obliged to file a motion to

dismiss. That is optional. In fact, the defendant is allowed,
instead of filing a motion to dismiss, to file an answer invoking
the ground for a motion to dismiss as an affirmative defense.
And then the defendant could even ask for a preliminary
hearing for his affirmative defenses as if a motion to dismiss
has been filed.
BASIC PATTERN (No cross-claim, counterclaim or 3rd-party

complaint, etc.):
1.)
Plaintiff presents evidence to prove his claim or cause of

action. That is what you call EVIDENCE IN CHIEF, also
called as the MAIN EVIDENCE; (paragraph [a])
2.)
Defendant presents evidence in chief or main evidence

to prove his defense negative or affirmative defense;
(paragraph [b]),
3.)
Plaintiff will present what we call REBUTTAL EVIDENCE to

rebut defendants main evidence. (paragraph [f])
4.)
Defendant is given the chance to present rebuttal

evidence to rebut the rebuttal of evidence of the
plaintiff. In legal parlance, we call that SUR-REBUTTAL
evidence; (paragraph [f])
5.)
Therefore, in the hearing for a motion to dismiss, the

defendant is now converting his defense into a ground for a
motion to dismiss. In which case, the affirmative defense will
be heard ahead of the main action. So, that is allowed under
Rule 16.
So, there is nothing basically wrong with an affirmative
defense being heard ahead of the plaintiff, especially when
the plaintiff has nothing to prove anymore.
Well, of course that is more apparent in criminal procedure. In
the order of trial in criminal procedure, the court may even
direct the accused to present evidence ahead of the
prosecution when the accused is already admitting the facts
constituting the crime but only invokes a defense such as
self-defense when you are accused of homicide and your
defense is that you acted in self-defense. So, wala ng i-prove
ang prosecution. Automatically, you are admitting that you
killed the victim. The burden now is shifted to you to justify
the killing. Thats what they call TRIAL IN REVERSE.
ARGUMENTS. Normally, it is what we call the filing of

MEMORANDUM (written arguments) the parties will
submit their respective memoranda, unless the case will
be submitted for decision without arguments or
memorandum. (paragraph [g])
So, normally, that is the basic pattern of the order of trial. Now,
plaintiff presents evidence ahead, after him defendant presents
evidence to prove his defense.
Now, in the case of
So, in criminal cases where the law authorizes a reversed trial

where the accused is directed to present evidence ahead of
the prosecution, there is no reason why the same procedure
cannot also apply in civil cases. That is the essence of the
MAPAYO ruling. So, more or less, that is the deviation from
the normal order of trial.
YU vs. MAPAYO 44 SCRA 163

FACTS: The plaintiff filed a complaint against the defendant to
collect a loan which, according to the plaintiff, the defendant has
not paid. The defendant filed an answer admitting the loan but ang
kanyang affirmative defense is, the obligation is paid.
Section 5 [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;
During the trial, the plaintiff said that he is no longer going to

present any evidence to prove his cause of action because anyway,
the defendant has admitted the obligation; and since the
defendant is the one invoking payment, it is, therefore, his burden
to prove payment.
Paragraph 5 (f) is actually presentation of rebuttal evidence.
The trial court agreed with the plaintiff, Yes. Alright defendant,
you present evidence that the obligation is paid. Anyway, you are
admitting that you borrowed money.
Q: What is the difference between the evidence mentioned in

paragraph [f] and the evidence mentioned in paragraphs [a] and
[b]?
Now, according to the defendant, the procedure is improper the

order of the trial being altered, Why will the defendant prove his
defenses ahead. The plaintiff is supposed to present evidence bago
ako. Bakit uunahin ako? That is the objection of the defendant.
A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF

to prove your main cause of action or your defense. In paragraph
[f], the evidence is not evidence in chief but REBUTTAL EVIDENCE
to dispute the side of the other party.
302

Q: Is a party allowed to present evidence in chief in the rebuttal

stage?
eyes and said, Your Honor, in the interest of justice may we be

allowed to present evidence in chief for the rebuttal stage. And the
court said granted, Sure pare basta ikaw! [Mas OK pa sa
ALRIGHT]! So pasok na naman!
A: GENERAL RULE: NO, because paragraph [f] provides that the

parties may then respectively adduce rebutting evidence only. In
other words, you do not go back to paragraphs [a] and [b]. If you
have evidence to prove your cause of action or defense, you should
have done it earlier.
In other words, saan niya kinuha ito? When I looked at the Rules,
iyon pala! He knows how to invoke it. In other words, you can see
the skill of a veteran lawyer. The rules are at his fingertips. So, that
is how I saw this provision operates.
So generally, evidence in chief is not allowed during the rebuttal

stage. But there is an exception:
Section 5 [g]: Upon admission of the

evidence, the case shall be deemed
submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further
pleadings.
EXCEPTION: Unless the court, for good reasons and in the

furtherance of justice permits them to adduce evidence upon their
original case. Meaning, it permits them to adduce evidence in
chief. But you need the permission of the court because normally,
you should have done that under paragraphs [a] and [b] and not in
paragraph [f].
Now, of course, pag tapos na kayo, main evidence and rebuttal,

tapos na ang kaso. Meaning, the case is ready for decision. But
normally, the lawyer of the parties would say, We would like to
argue. And the argument is normally not oral but in writing where
you will be asked to file what you call MEMORANDUM.
Q: Give instances when the court may allow the party to present
additional evidence in chief during rebuttal to prove his cause of
action.
1.)
2.)
3.)
4.)
A MEMORANDUM is practically a thesis where you will summarize

your position and you argue why you should win. That is where you
cite evidence. You convince the court that you have proven your
cause of action or defense. Then you cite the testimonies, the
exhibits, the transcripts and of course, the argument, the
jurisprudence, the law. That is where you argue. You do not argue
in your pleading. Pleadings, complaint, answer is not the time to
argue. There, you only state the facts. You argue after the trial
where you interpret now the evidence and convince the court.
When it is newly discovered;

When the evidence was omitted through inadvertence
or mistake;
When the purpose is to correct evidence previously
offered; (Lopez v s. Liboro, 81 Phil. 429)
When the additional evidence offered is material and not
merely cumulative or impeaching (64 C.J. 160-163)
Those are the possible instances when the court in the interest of
justice may allow the parties to present evidence in chief during
the rebuttal stage which is normally not allowed.
Summary of trial and judgment
And that is what I saw exactly years ago how this paragraph [f]
operates. There was case here we were watching before. There
was a veteran trial lawyer from Manila who tried a case here. I
think it was a damage suit against KLM Royal Airlines for breach of
contract of carriage because some of the passengers were from
Davao City. Alright when they are already in the rebuttal stage, the
lawyer for the Airlines was presenting evidence and the counsel for
the plaintiff argued, Objection Your Honor, it is not rebuttal
evidence. It is evidence in chief which he is presenting. So it is not
proper during this stage.
And the trial court agreed, Yes, it is improper. The evidence in chief
should have been presented earlier. Therefore, objection is
sustained. Lawyer for the Airlines, So, you honor, may we move
for a reconsideration because we believe it is rebuttal evidence and
it is very important. So, balik na naman sila sa argument. And then
the court said, The motion for reconsideration is denied, you are
not allowed.
1)
Plaintiff presents evidence
2)
Defendant presents evidence to support his

defense/counterclaim/cross claim/3rd-party complaint;
3)
Third-party defendant presents evidence;
4)
Parties against whom a counterclaim or cross claim is

pleaded presents evidence in their defense;
5)
Rebuttal evidence by parties;
6)
Decision
When defendant files a demurrer to evidence

However, defendant can file a demurrer to evidence after the
plaintiff has completed its presentation of evidence and rested its
case.
When this happens the court has the following options:
So, patay siya. And its really true that what was presented was
evidence in chief and not rebuttal evidence. So, hindi siya ba
makalusot or hindi siya makapasok. So, for a while, he closed his
1)
2)
303
To grant the motion and issues an order of dismissal; or

To deny the motion and continue the hearing following
the steps.

do not apply anymore the issue of what happened because it is

already agreed. Your answer would be similar to a JUDGMENT
BASED ON STIPULATION OF FACTS.
In both cases, before rendering a decision, the court may allow the
parties to:
1) present oral arguments or;
2) submit memoranda.
Note: Subject to Section 2 of Rule 31 and unless the court for
special reasons, otherwise directs, the trial shall be limited to the
issues stated in the pre-trial order.
Q: Why is an agreed statement of facts sufficient basis for a

judgment?
A: The reason is that an agreed statement of facts is conclusive on
the parties, as well as on the court. Neither of the parties may
withdraw from the agreement, nor may the court ignore the same.
(McGuire vs. Manufactures Life Ins. Co., 87 Phil. 370)
Sec. 6. Agreed statement of facts. The parties

to any action may agree, in writing, upon the
facts involved in the litigation, and submit
the case for judgment on the facts agreed
upon, without the introduction of evidence.
Q: Now suppose they can agree on some facts but they cannot
agree on others.
A: There is no problem. You can have a partial stipulation of facts
and then we can try the rest with respect to the other disputed
facts.
If the parties agree only on some of the facts

in issue, the trial shall be held as to the
disputed facts in such order as the court shall
prescribe. (2a, R30)
That is why the second paragraph says, If the parties agree only on
some of the facts in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe. At least, it would
still be faster because the disputed facts are now limited. Rather
than proving ten (10) issues of facts, it will be reduced to 3 or 4.
So, the trial would still be faster.
Alright, why do the parties present evidence 1, 2, 3, 4. What is the

purpose there? To prove facts. Normally, we cannot agree on the
facts. I say something and you will say that is not true and this is
what happened. So, normally, cases arise because of the issue of
what happened.
Note: If no evidence is presented and the case is submitted for

decision on an agreement of the parties, the court should render
judgment in accordance with said agreement. The court cannot
impose upon the parties a judgment different from their
compromise agreement.
Q: Now, is there a possibility that the court will decide whether

there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the
litigation and they will submit the agreed facts or the case for
decision. That is what we call JUDGEMENT ON AGREED STATEMENT
OF FACTS or the more popular term: JUDGEMENT BASED ON
STIPULATION OF FACTS.
However, the compromise agreement must not be contrary to law,

morals, good customs, public order and public policy (Philippine
Bank of Communications vs. Echiverri, GR No. L-41795, Aug. 29,
1980)
EXAMPLE: The plaintiff and the defendant agree on all the facts.
These are the facts, sabi ng plaintiff. Then sabi ng defendant,
Yes, I agree those are the facts. Now if we agree on the facts,
there is nothing more to prove. And what we are now quarreling is
who should win based on the facts agreed upon. So, ano ngayon
ang kaso? That is purely a legal question. There is nothing to prove
because everything is admitted. They disagree only on the
conclusion.
Stipulation of facts (SOF) are not permitted in actions for

annulment of marriage and for legal separation.
SOF in civil and criminal cases
1)
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is
nothing to prove. In which case, we will go immediately to step no.
5. So, if the parties agree in writing upon the facts involved in the
litigation and they will submit the agreed facts for decision, that is
JUDGEMENT BASED ON STIPULATION OF FACTS which is
encouraged by the law. This is one of the purposes of Pre-Trial
(Rule 18, Section 2 [d]) where the parties are encouraged to
stipulate on facts, because really, it would save a lot of time.
2)
SOF in civil cases may be signed by the counsel alone

who has a special power of attorney while in criminal
cases it should be signed by both the counsel and the
accused;
In civil cases the SOF may be made orally or in writing
while in criminal cases it must always be in writing.
The court is not bound to find out what happened when the parties
already agreed on what happened.
EXAMPLE: The parties will stipulate, This case involves a piece of
land with an area of 50 hectares, planted with coconut trees of
about 5,000. So, parties agreed and then the court says, No, I do
not believe you. It might be more than 59 hectares. NO. When
the parties agree, sundin mo yan because they themselves agree
on the facts. You only determine the facts if they cannot agree.
The best example of agreed facts would be examination problems.

The facts are already given this is what happened. You cannot
change that anymore. And you will be asked, DECIDE: Is A correct
or is B correct. So in other words, you simply apply the law. You
304

That is why the court is bound by the stipulations made by the

parties.
So at anytime that one party expresses its desire to settle, even in

the middle of the case, the court is authorized to suspend the
action to give the parties opportunity to settle because of the
policy of the law to encourage the parties to settle amicably.
Sec. 7. Statement of judge. During the hearing

or trial of a case any statement made by the
judge with reference to the case, or to any of
the parties, witnesses or counsel, shall be
made of record in the stenographic notes.
(3a, R30)
That is why even former U.S. President Lincoln, who is more

remembered as president rather than as a lawyer, was quoted,
Discourage litigation. Persuade your neighbor to compromise
whenever you can. Point out to them how the nominal winner is
often the real loser in fees, expenses and waste of time. As a
peace-maker [Long Live the PeaceMakers!], the lawyer has the
superior opportunity of being a good man. There would still be
business enough.
Take note that the trial is a formal court proceeding. Everything is

recorded there the statement of parties, their lawyers, including
the statement of the judge. Any statement made by the judge with
reference to the case or to any of the parties, witnesses, or counsel
shall be made of record in the stenographic notes.
Meaning, aregluhin ba hanggang maari, you better settle. When

you settle, nobody is loser and nobody is winner. Both of you win.
Walang masakit ang loob ba. And marami pang negosyo, marami
pang kaso. Do not make such money out of one case. If you can
settle, i-settle muna. Huwag mong sabihing sayang iyong income
dahil marami pang kaso na darating. That was what he said.
Sec. 8. Suspension of actions. The suspension

of actions shall be governed by the provisions
of the Civil Code. (n)
This is mentioned in Rule 18, Section 2 [h] which discusses the
possibility of suspension of the proceedings. Meaning, huwag
munang gumalaw ang kaso in suspended animation baah!
Now, of course, what happens if the party cannot agree to settle?

Well, the procedure is, let the trial go on. That is why in the 1992
case of
Q: And what is the possible good legal ground for the parties to ask
for suspension of the hearing? Meaning, held in abeyance ba.
What would be the best possible ground?
GOLDLOOP PROPERTIES, INC. vs. CA - 212 SCRA 498 [1992]

FACTS: The parties in a civil action manifested the possibility of
submitting amicable settlement. The court gave them 15 days to
submit their compromise agreement. 15 days passed, no amicable
settlement was submitted by the parties. With that, the court
dismissed the case.
A: The best possible ground is the one mentioned in Article 2030 of

the New Civil Code:
Art. 2030. Every civil action or proceeding
shall be suspended:
ISSUE: Was the court correct in dismissing the case when the
parties cannot settle?
1. If willingness to discuss a possible

compromise is expressed by one or both
parties; or
HELD: The dismissal is WRONG. Since there is nothing in the Rules

that imposes the sanction of dismissal for failing to submit a
compromise agreement, then it is obvious that the dismissal of the
complaint on the basis thereof amounts no less to a gross
procedural infirmity. While a compromise is encouraged, very
strongly in fact, failure to consummate one does not warrant any
procedural sanction, much less an authority to jettison a civil
complaint. What the court should have done was to continue the
action.
2. If it appears that one of the parties, before

the commencement of the action or
proceeding, offered to discuss a possible
compromise but the other party refused the
offer.
The duration and terms of the suspension of
the civil action or proceeding and similar
matters shall be governed by such provisions
of the rules of court as the Supreme Court
shall promulgate. Said rules of court shall
likewise provide for the appointment and
duties of amicable compounders. (n)
In other words, why should you dismiss the complaint when the
parties cannot settle? By that, technically, natalo ang plaintiff. Kung
hindi magkaareglo, then go on with the trial. You have no authority
to dismiss the case simply because the parties cannot settle.
However, there are certain matters which cannot be the subject of
compromise. Practically, compromise is allowed on anything under
the sun, except certain matters such as those mentioned in Article
2035.
According to Article 2030 of the civil code, if at anytime while the

case is going on, one of the parties would like to discuss a POSSIBLE
AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the
suspension of proceedings. Why? The court of the law favors
compromises or amicable settlements in civil cases.
Q: What are the matters that cannot be the subject of

compromise?
305

A: Under the Article 2035, New Civil Code, the following:

(1)
(2)
(3)
(4)
(5)
(6)
A good example is DEFAULT. But actually, it could also be a case

where the parties agreed in writing or other cases where it can be
heard ex-parte other than default. Because there are many cases
na to my mind that the judge does not really need to be there
listening.
The civil status of persons; (whether legitimate or

illegitimate)
The validity of a marriage or a legal separation; (w/n a
marriage settlement exists)
Any ground for legal separation;
Future support; (always depends on the means of the
party giving support)
The jurisdiction of courts;
Future legitime.
Like for example, a petition for the issuance of lost or transfer of

certificate yung titulo mo nawala your title is lost or you
misplaced it and you will prove na nawala. That should be heard in
court but to my mind that is not a controversy, eh because there is
only one party there. So it is possible for the court to delegate that
to the clerk of court in order that they (judges) can attend to other
controversial cases.
So you cannot agree on these. You cannot compromise as a

legitimate when in fact you are illegitimate. Where is the basis of
that? You cannot compromise that the marriage is valid when in
fact it is not, or it is null and void. These things cannot be the
subject of agreement.
Now, please connect this provision with Section 3 of Rule 9 on

Default:
Sec. 9. Judge to receive evidence; delegation to

clerk of court. The judge of the court where
the case is pending shall personally receive
the evidence to be adduced by the parties.
However, in default or ex parte hearings, and
in any case where the parties agree in
writing, the court may delegate the reception
of evidence to its clerk of court who is a
member of the bar. The clerk of court shall
have no power to rule on objections to any
question or to the admission of exhibits,
which objections shall be resolved by the
court upon submission of his report and the
transcripts within ten (10) days from
termination of the hearing. (n)
Sec. 3. Default; declaration of. - If the

defending party fails to answer within the
time allowed therefor, the court shall, upon
motion of the claiming party with notice to
the defending party, and proof of such
failure, declare the defending party in
default. Thereupon, the court shall proceed
to render judgment granting the claimant
such relief as his pleading may warrant,
unless the court, in its discretion requires the
claimant to submit evidence. Such reception
of evidence may be delegated to the clerk of
court. (1a, R18)
So in default hearing, it is now the discretion of the court either to
conduct an ex-parte reception of evidence which can be delegated
to the clerk of court, or the court may render judgment based on
the pleadings. So, it is optional.
General rule: The judge shall personally receive and resolve the
evidence to be adduced by the parties.
However, the reception of such evidence may be delegated under
the following conditions:
1)
2)
3)
4)
Now, to my mind, kung ang case is a collection case or any other

cases which are simple, pag na-default ang defendant, puwede na
decision dayon. Pero kung controversial cases, do not render
judgment based on the pleadings. You better conduct an ex-parte
reception of evidence and you may delegate the reception of
evidence to the clerk of court.
the delegation may be made only in defaults or ex-parte

hearings; and in any case where the parties agree in
writing;
the reception of evidence shall be made only by the clerk
of court, who is a member of the bar, of that court;
said clerk shall have no power to rule on objections to
any question or to admission of evidence or exhibits; and
he shall submit his report and transcripts of the
proceedings, together with the objections to be resolved
by the court within 10 days from the termination of the
hearing.
Yun iyong mga out of ordinary cases which are really controversial
where the court should require the presentation of evidence. Pero
yong mga kaso na not so complicated, no need of reception of
evidence in order to expedite the process of adjudication.
The Rules now expressly allows the court to delegate the reception
of evidence to the clerk of court who must be a member of the bar.
Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS
OCCIDENTAL and junking forever the ruling in LIM TANHU vs.
REMOLETE because in the case of REMOLETE, it was ruled that the
judge cannot delegate the reception of evidence to the clerk of
court. Now, puwede na.
306

Rule 31
respect to or arising out of the same transaction or

series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except
as otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one
complaint, where any question of law or fact
common to all such plaintiffs or to all such
defendants may arise in the action; but the court
may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed
or put to expense in connection with any
proceedings in which he may have no interest.
CONSOLIDATION OR SEVERANCE
SECTION 1. Consolidation. - When actions

involving a common question of law or fact
are pending before the court, it may order a
joint hearing or trial of any or all the matters
in issue in the actions; it may order all the
actions consolidated; and it may make such
orders concerning proceedings therein as
may tend to avoid unnecessary costs or
delay. (1)
The phrase answers the questions:
Consolidation involves several actions having a common question

of law or fact which may be jointly tried.
Q: When may 2 or more parties be joined together in one

complaint, either as co-plaintiffs or co-defendants?
Severance contemplates a single action having a number of claims,

counterclaims, cross claims, 3rd party complaints or issues which
may be separately tried.
A: There must be a common question of fact or law involved in

their causes of action.
Q: When may actions be consolidated?
General rule: Consolidation is discretionary upon the court.
A: One of the requisites is: when the actions involve a common

question of law or fact.
Exceptions: Consolidation becomes a matter of duty when the

cases are:
1)
2)
In other words, there must be a connection somewhere between

the rule on Consolidation of actions in Rule 31, with the rule on
Permissive Joinder of Parties in Rule 3.
pending before the same judge; or

filed with different branches of the same RTC and one of
such cases has not been partially tried.
Q: When is consolidation of actions proper?
When we were in Rule 3, an EXAMPLE was given: Suppose 30

people were riding on a bus which met an accident and all the
plaintiffs were injured. After the incident, the 30 of them decided
to file claims for damages against the bus company. They hired the
same lawyer.
A: Consolidation is proper:
Q: Can the lawyer file 30 complaints for each plaintiffs?
Purpose: To avoid multiplicity of suits, guard against oppression or

abuse, prevent delay, clear congested dockets, simplify the work of
the trial court and save unnecessary costs and expenses.
1)
when two or more actions involve the same or a

common question of law or fact; and
2)
the said actions (at least 2) are pending before the same
court. (Section 1, Rule 31; PAL vs. Teodoro, 97 Phil. 461)
3)
if filed with different courts, an authorization from the

Supreme Court is necessary.
A: YES.
Q: Can the lawyer file only one complaint naming as co-plaintiffs
the 30 injured passengers?
A: YES, that is permissive joinder of parties which is encouraged to
expedite litigation, to avoid multiplicity of suits, to economize the
procedure or avoid repetition of evidence. There are the
justification for permissive joinder of parties in Rule 3 Section 6 but
they can only join one complaint if they have the same lawyer.
First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A

COMMON QUESTION OF LAW OR FACT
Q: But suppose the 30 passengers were injured and after their

discharge from the hospital the 30 of them hired separate
lawyers.?
Did you notice that phrase two or more actions involve the same
or a common question of law or fact? That phrase seemed to be
familiar. Common question of law or fact, where did we meet
that requirement before? That is in joinder of causes of action
two or more causes of action can be joined in one pleading if they
involve a common question of fact or law. Rule 3, Section 6:
A: There can be no joinder of parties. You cannot join the parties in

one complaint because each plaintiff is represented by a different
lawyer.
SEC. 6 Permissive joinder of parties All persons in

whom or against whom any right to relief in
307

In this case, there should be 30 complaints filed lets say, in the RTC
of Davao City, and they are raffled to different branches or judges.
The defendant might feel that he would rather have the 30 cases
tried together. Defendant says, This is difficult. Imagine 30 cases
sa 30 salas? Iba-ibang courts. My witnesses would have to testify
30 times because there are 30 separate complaints.
2)
by consolidation proper or by consolidating the existing

cases - It is a joint trial with joint decision, the cases
retaining their original docket numbers; and
3)
by test-case method - by hearing only the principal case

and suspending the hearing on the other cases until
judgment has been rendered in the principal case. The
cases retain their original docket numbers.
Q: Can the 30 cases be joined together para isang judge na lang?

Consolidation of cases on appeal and assigned to different divisions
of the SC and the CA is also authorized.
A: YES. The lawyer for the bus company can file a motion under
Rule 31, Section 1 to consolidate the actions. Meaning, the 30
cases should be raffled and assigned to only one judge, there being
a common question of law or fact. This is to economize the
procedure if the evidence will be presented only once. Thus, every
time when the case is called, the 30 cases would be tried together.
Para ka na ring nag-permissive joinder of parties.
The consolidation of civil and criminal cases is allowed. This is now

sanctioned under Section 2(a), R 111 of the Rules of Criminal
Procedure (Canos vs. Pealta, GR No. L-38352, Aug. 19, 1982)
CONSOLIDATION under RULE 31
vs.
CONSOLIDATION OF CRIMINAL ACTIONS under RULE 119
The purpose of consolidation is to achieve the same effect of

permissive joinder of parties under Rule 3, Section 6. You end in
having only one case, kaya lang 30 complaints are to be tried
together. That is why there is a connection between consolidation
and permissive joinder of parties.
Now, there is also a provision in the rules on Criminal Procedure on

consolidation of criminal actions under Rule 119, Section 14:
SEC. 14. Consolidation of trials of related
offenses. - Charges for offenses founded on
the same facts, or forming part of a series of
offenses of similar character may be tried
jointly at the court's discretion. (Rule 119)
Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE

SAME COURT
Q: In the example above, suppose one passenger filed his case in

Davao City, another passenger filed his case in Tagum because he
resides there, and another files his case in Mati, can there be
consolidation of their cases?
Q: Distinguish Consolidation of civil actions from Consolidation of

criminal actions.
A: NONE. You cannot consolidate because they are pending in

different courts in different provinces. The law says it must be in
the same court.
1)
Take note that cases are consolidated because it will expedite their
termination, thereby economizing on the procedure. Cases are
consolidated not only when the cases are before the trial court.
There are many times when cases are consolidated or joined
together even when they are already on appeal, provided, there is
a common question of law or fact.
In criminal cases, only one offense can be the subject of

one complaint or information. consolidation of criminal
actions is exclusively for joint trial;
Q: Can you file one complaint or information embodying
two or more crimes?
If we look at the SCRA, sometimes the decision involves 2 or 3

cases. The caption sometimes has 3 or more cases, but theres only
1 decision. And these cases are coming from different parts of the
country. Why are these cases joined before the SC? Because there
is a common question of fact or law or legal issue. So, even in the
SC, cases are consolidated and decided together for the first time.
Ang tawag dyan is COMPANION CASES because the same issues are
being raised in the petitions.
A: NO. You cannot. That is what you call duplicitous

complaint or information. There is no such thing as
joinder of crimes. Therefore, the so-called consolidation
of criminal actions is not actually filing one information
but it is only for the purpose of joint trial.
2)
Three (3) ways of consolidating cases:

1)
In civil cases, one or more causes of action may be

embodied in one complaint because when there is
permissive joinder, there is automatic consolidation also;
whereas
In civil cases, the opposite of consolidation is

severance under Section 2; whereas
In criminal cases, the opposite of consolidation is
separate trial. In reality, there is actually no
consolidation of criminal cases. There is only joint trial of
criminal cases.
by recasting the cases already instituted - reshaping of the

cases by amending the pleading and dismissing some cases
and retaining only one case. There must be joinder of
causes of action and of parties;
308

Under the rules on Criminal Procedure the accused may reserve the
right to file the civil action separately when the criminal action is
filed, the civil action is deemed instituted unless the offended party
will make a reservation to file it separately. Or, when the civil
action was instituted ahead, the subsequent filing of the criminal
case will mean there is no more civil action there. And Section 2 of
Rule 111, suppose the offended party made a reservation to
institute a civil action and a criminal case is filed, he cannot file the
civil action thats the rule. He must wait for the outcome of the
criminal case. The criminal case enjoys priority.
When Judge Peralta noticed that the 2 actions arose out of the
same incident and the accused in the criminal case is also the
defendant in the civil case, and the offended party in the criminal
case is the plaintiff in the civil case, he ordered the consolidation of
the 2 cases under Rule 31, Section 1, to be tried together.
Dr. Caos objected to the consolidation because according to his
lawyer, consolidation of cases under Rule 31, Section 1 applies only
when there are 2 or more civil cases to be considered.
ISSUE #1: Was the consolidation proper?
Q: What happens if na-una na-file yung civil action?
HELD: The order of consolidation is correct. Rule 31, Section 1

allows the consolidation of a criminal and civil case because of the
fact that there is a common question of fact or law between them
and that they are pending before the same court. As a matter of
fact, before the same judge.
A: According to Section 2, Rule 111 from the moment the criminal

case is filed, the trial of the civil case is suspended to wait for the
outcome of the criminal case.
Q: Is this prejudicial to the offended party? What is the remedy of
the offended party?
ISSUE #2: How do you reconcile these cases because the degree of
proof in the criminal case is not the same in the civil case?
A: There is a way out according to Section 2, Rule 111. The first

thing for him to do is to file a petition to consolidate the trial of the
criminal and civil case for them to be tried together and the
evidence already presented in the civil case is deemed
automatically reproduced in the criminal case. This is what you call
the consolidation of the civil and criminal action under Section 2,
Rule 111:
HELD: The consolidation was proper under Rule 31 because there is

a common question of fact and law. They can be consolidated but
for purposes of decision, the court will now apply two (2) different
criteria: Proof beyond reasonable doubt in the criminal case and
preponderance of evidence in the civil case. So there is no
incompatibility.
SEC. 2. Separate trials. - The court, in
furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or thirdparty complaint, or of any separate issue or
of any number of claims, cross-claims,
counterclaims, third-party complaints or
issues. (2a)
Nevertheless, before judgment on the merits

rendered in the civil action, the same may, upon
motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action
(Section 2, Rule 111)
Q: Is this consolidation mandatory?
A: NO. It is permissive. Actually, the offended party is the one to
initiate this because if not, then he has to wait for the criminal case
to be terminated before he can file the civil case.
Section 2 is the exact opposite of Section 1. In Section 1, there are

2 or more cases which shall be joined together for joint trial. In
section 2, there is one case with several claims, i.e. counterclaims,
cross-claims and third-party complaints. The rule states that they
should be tried together, one after the other, and then one
decision.
Q: Can you move to consolidate in one court the criminal and the
civil case when actually the degree of proof required in one case is
different from the degree of proof required in another case?
A: That was answered in the affirmative in the case of
So for example, you ask the judge for a separate schedule for your
3rd-party claim. Then there will be a separate schedule for the
3rdparty complaint rather than following the order of trial under
Rule 30. Under the order of trial, I have to wait for my turn to prove
my 3rd-party claim. If we follow Rule 30 (order of trial) before it
reaches the 3rd-party complaint, matagal masyado.
CAOS vs. PERALTA 115 SCRA 843

FACTS: This case originated in Digos, Davao del Sur, involving the
late Dr. Rodolfo Caos, who owned the Caos Hospital there. The
respondent here was former CFI Judge Elvino Peralta. There was
an incident which led to the filing of a criminal case by A against B.
A reserved the right to file a separate civil action under the rules on
criminal procedure. A filed a separate civil case, but arising out of
the same incident. Both of the cases were assigned to Judge
Peralta.
But under Section 2, the court may grant a separate trial for your
3rd-party claim or permissive counterclaim especially when there is
no connection between my permissive counterclaim with the main
action.
309

Rule 32
The fact that the case involves accounting and the judge is not an
accountant (it is different if the judge is a CPA/lawyer, hindi
mahirap), the judge then should appoint an accountant to assist
him. That accountant is known as the commissioner. That will
certainly shorten the time and expedite the resolution of the case.
TRIAL BY COMMISSIONER
Trial by commissioner applies when there is something to be tried
which requires some technical expertise, like accounting, which the
court feels it does not possess, and it will be a waste of time if
everything will be tried in court. So, the court will refer it to a
commissioner, You hear that and then you submit a report. Submit
you report, you finding and your recommendation. And that
person is known as a commissioner.
The judge can then attend to other cases while the parties are
presenting all their invoices and receipts before the
accountant/commissioner.
Example #2:
Commissioner is a person to whom a case pending in court is

referred, for him to take testimony, hear the parties and report
thereon to the court, and upon whose report, if confirmed,
judgment is rendered (2 Martin, p. 142)
Prof. X and Magneto are owners of adjoining properties. Magneto

put up a fence. Prof. X sued Magneto for forcible entry on the
ground that Magneto encroached on Prof. Xs ground, and praying
for the recovery of, say, 200 meters. Magneto contends that he
built the fence on the boundary line.
SEC. 1. Reference by consent By written

consent of both parties, the court may order
any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the
parties or to be appointed by the court. As
used
in
these
Rules,
the
word
commissioner includes a referee, an
auditor and an examiner.
The judge will look at the title of the land: point degree
9, etc.. only surveyor or a geodetic engineer
understands that! In this case, the court may appoint a
geodetic engineer, order the submission of the titles of
the lands to him, he will go to the area, sukat-sukatin
niya, and he will draw a sketch and then based on the
sketch, he will determine whether or not there is an
encroachment. The appointed surveyor or geodetic
engineer is called a commissioner.
Reference to a commissioner may be had by the written consent of

both parties.
This is what you call trial by commissioner. And take note that
under Section 1, trial by commissioner is possible by mutual
agreement of the parties. The parties must agree. Either you can
agree on who is the CPA, who is the engineer, or you can ask the
court to appoint somebody
General rule: Trial by commissioner depends largely upon the

discretion of the court; but the following are instances when such
appointment is mandatory:
1)
2)
3)
4)
Expropriation (R 67);
Partition (R 69);
Settlement of Estate of a Deceased Person in case of
contested claims; and
Submission of accounting by executors or administrators.
Q: Suppose the parties cannot agree, or one party files a motion

asking for the appointment of a commissioner. Is the court still
empowered to apply Rule 32?
A: YES, under section 2:
Note: An irregularity in the appointment of a commissioner must be

seasonably raised in the trial court where the defect could still be
remedied. It can be waived by consent of the partes or implied.
SEC. 2. Reference ordered on motion When the

parties do not consent, the court may, upon the
application of either or of its own motion, direct a
reference to a commissioner in the following
cases:
This was mentioned when we were talking about pre-trial. This is

one of the purpose of a pre-trial. That is Rule 18, Section 2 [f]: (f)
The advisability of a preliminary reference of issues to a
commissioner; This provision is actually referring to Rule 32.
a.) When the trial of an issue of fact requires the

examination of a long account on either side, in
which case the commissioner may be directed to
hear and report upon the whole issue or any
specific question involved therein;
Example #1:
Prof. X and Magneto had continuous transactions. After a long
while, their records do not anymore reconcile. Prof. X filed a case
against Magneto on the ground that Magneto has not yet paid an
obligation which is already due. Based on Magnetos records,
bayad na lahat. Wala na syang utang. This is a question of
accounting.
b.) When the taking of an account is necessary for

the information of the court before judgment, or
for carrying a judgment or order into effect;
c.) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order
into effect.
The court will have to determine whose records are correct and
accurate invoices, receipts, etc must be presented, which might
be hundreds or thousands in volume. This will consume a lot of
time of the court.
Section 1 is reference by consent and Section 2 is reference

ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.
310

trial or hearing before him shall proceed in all

respects as it would if held before the court.
(3a, R33)
In (a), it requires an examination of a long account. The best

example here is example #1 accounting.
In (b) and (c), notice that a commissioner may be appointed for
carrying a judgment or order into effect. Thus, a commissioner,
can be appointed not only to help the court render a decision, but
also help the court enforce a decision even if tapos na ang case.
Because sometimes, problems arise on how to implement a
decision of the court.
Requisites of the order of reference;

1)
2)
3)
it must state the purpose;

it must be in writing; and
it may specify or limit the power of the commissioner.
Powers of Commissioner:
Example: There was a case of boundary dispute. Prof. X built his
house near the boundary of his property. According to his
neighbor, Magneto, a portion of the house of Prof. X encroached
on his land. About 25 sq. m. lang. Prof. X lost. The court says to
Prof. X: You are directed to return the 25 sq. m. which you
occupied. The sheriff will go there to return the 25 sq. m. Which
part of the house will the sheriff demolish? The sheriff returns to
the court because he cannot understand and he does not know
how to implement the decision. So, the court solves that by
appointing a surveyor as a commissioner to find out where that 25
sq. m. will be taken from the portion of the house.
1)
2)
3)
4)
5)
Note: Requirement of hearing cannot be dispensed with as this is

the essence of due process.
Q: Give other examples of trial by commissioner.
So a commissioner is parang judge rin. In effect he is an assistant

judge. Biro mo, he can issue subpoenas, swear witnesses, and
unless otherwise provided in the order of reference, may rule
upon the admissibility of evidence, of course, subject to the final
approval of the court.
A: The following:
1.)
2.)
exercise power to regulate the proceedings before him;

do all acts and take all measures necessary or proper for
the efficient performance of his duties;
swear witnesses;
issue subpoenas and subpoenas duces tecum;
unless otherwise provided in the order of reference, rule
upon the admissibility of evidence.
Special Civil Action of Expropriation under Rule 67

when the court has to determine just compensation.
Under Rule 67, it is mandatory for the court to appoint a
commissioner in order to determine as to how much the
value of the property;
Compare that with Rule 30 when there is an ex-parte reception of

evidence where the clerk of court is delegated to receive evidence.
But the clerk of court cannot rule on the admissibility of evidence.
Special Civil Action of Partition under Rule 69. When the

heirs cannot agree on how to partition a property under
co-ownership, the court may appoint a commissioner to
study and submit its report.
To my mind, for example, in cases involving accounting, the best

commissioner would be a CPA-lawyer because he knows about the
law on evidence and accounting. Kung boundary conflicts naman,
the best. commissioner would be a geodetic engineer-lawyer.
However, you rarely find that combination.
So take note that trial by commissioner is allowed not only for the
purpose of the court rendering the judgment but also for the
purpose of carrying a judgment or order into effect.
SEC. 4. Oath of commissioner. - Before

entering upon his duties the commissioner
shall be sworn to a faithful and honest
performance thereof. (14, R33)
SEC. 3. Order of reference; powers of the

commissioner. - When a reference is made,
the clerk shall forthwith furnish the
commissioner with a copy of the order of
reference. The order may specify or limit the
powers of the commissioner, and may direct
him to report only upon particular issues, or
to do or perform particular acts, or to receive
and report evidence only, and may fix the
date for beginning and closing the hearings
and for the filing of his report. Subject to the
specifications and limitations stated in the
order,the commissioner has and shall
exercise the power to regulate the
proceedings in every hearing before him and
to do all acts and take all measures necessary
or proper for the efficient performance of his
duties under the order. He may issue
subpoenas and subpoenas duces tecum,
swear witnesses, and unless otherwise
provided in the order of reference, he may
rule upon the admissibility of evidence. The
SEC. 5. Proceedings before commissioner. Upon receipt of the order of reference and
unless otherwise provided therein, the
commissioner shall forthwith set a time and
place for the first meeting of the parties or
their counsel to be held within ten (10) days
after the date of the order of reference and
shall notify the parties or their counsel. (5a,
R33)
SEC. 6. Failure of parties to appear before
commissioner. - If a party fails to appear at
the time and place appointed, the
commissioner may proceed ex parte or, in his
discretion, adjourn the proceedings to a
future day, giving notice to the absent party
or his counsel of the adjournment. (6a, R33)
Where the order was merely to examine the accounts
involved in the counterclaim without any direction to
311

hold hearings, the commissioner do not need the

presence of the parties (Froilan vs. Pan Oriental Shipping
GR No. L-6060, Sept. 30, 1954)
therein set forth, shall not be considered by

the court unless they were made before the
commissioner. (10, R33)
SEC. 7. Refusal of witness. - The refusal of a

witness to obey a subpoena issued by the
commissioner or to give evidence before him,
shall be deemed a contempt of the court
which appointed the commissioner. (7a, R33)
Of course, the parties are given a copy of the report. And

if it is against you, you can question the findings of that
commissioner. Sometimes, it is very difficult because
there is already a court appointed commissioner but you
have to get another CPA to check on his report.
EXAMPLE: I, as a commissioner, subpoenaed you and you will not

show up. I will report you to the court which appointed me and the
court which appointed me will declare you in contempt of court.
Remember, the commissioner is acting by authority of the judge.
Thats why he has powers under the law.
Note: Objections to the report based upon grounds

which were available to the parties during the
proceedings before the commissioner shall not be
considered by the court, unless they were made before
the commissioner.
SEC. 8. Commissioner shall avoid delays. - It is

the duty of the commissioner to proceed with
all reasonable diligence. Either party, on
notice to the parties and commissioner, may
apply to the court for an order requiring the
commissioner to expedite the proceedings
and to make his report. (8a, R33)
SEC. 11. Hearing upon report. - Upon the

expiration of the period of ten (10) days
referred to in the preceding section, the
report shall be set for hearing, after which
the court shall issue an order adopting,
modifying, or rejecting the report in whole or
in part, or recommitting it with instructions,
or requiring the parties to present further
evidence before the commissioner or the
court. (11a, R33)
The commissioner shall expedite the proceedings. He should hurry

up the report.
Sec. 9. Report of commissioner. - Upon the
completion of the trial or hearing or
proceeding before the commissioner, he shall
file with the court his report in writing upon
the matters submitted to him by the order of
reference.
When his powers are not
specified or limited, he shall set forth his
findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits,
affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence
presented before him. (9a, R33)
When the commissioner files his report with the court, the court
will now schedule it for hearing. The parties will be furnished
copies and during the hearing, if you do not agree with the report,
you can present objections thereto or criticize the report. You can
defend or attack it. The court will then determine whether to
accept the report or not.
Thats why under Section 11, the court shall issue an order
adopting, modifying, rejecting the report, in whole or in part, or
recommitting (ibalik) it to the commissioner with instruction, or
requiring the parties to present further evidence. The court is not
bound 100% to swallow everything in the report. But the court
rarely rejects the report of the commissioner, unless talagang there
is no basis for it. Chances are, when the report has support, talo ka
na. Although it is not conclusive.
Delegation to Clerk of Court and Trial by Commissioner

1)
2)
3)
The Clerk of Court must be a lawyer while a

commissioner need not be a lawyer;
Now take note that when the court approves a report, the findings
of the commissioner becomes the findings of the court.
The Clerk of Court cannot rule on objections or

on the admissibility of evidence while the
commissioner can;
Q: So, can the findings of the commissioner on question of fact be

questioned by the parties?
Delegation to the clerk of court is made during

trial while a commissioner can be appointed
even after the case has become final and
executory.
A: YES, under Section 11.
SEC. 10. Notice to parties of the filing of report.

- Upon the filing of the report, the parties shall
be notified by the clerk, and they shall be
allowed ten (10) days within which to signify
grounds of objections to the findings of the
report, if they so desire. Objections to the
report based upon grounds which were
available to the parties during the proceedings
before the commissioner, other than
objections to the findings and conclusions
A: YES, under Section 12:
Q: Is there an exception that the finding of the commissioner on

factual issues become final and no longer be questioned?
SEC. 12. Stipulations as to findings. - When the

parties stipulate that a commissioner's
findings of fact shall be final, only questions
of law shall thereafter be considered. (12a,
R33)
This is the only instance where you cannot question the
commissioners report when there is already an agreement
312

beforehand that the findings of fact by the commissioner are final,

we accept. So the principle of estoppel applies in this case and only
questions of law will then be considered. Meaning, factual issues
are binding upon the parties.
SEC. 13. Compensation of commissioner. - The
court shall allow the commissioner such
reasonable
compensation
as
the
circumstances of the case warrant, to be
taxed as costs against the defeated party, or
apportioned, as justice requires. (13, R33)
Q: Is the commissioner entitled to compensation?
A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a
reputable CPA tapos walang bayad? Sinong papayag niyan?
Q: How is the commissioner paid?
A: To be taxed as costs against the defeated party, or apportioned.
In most cases it is apportioned 50-50 [isa gatos tanan!]
313

Rule 33
evidence and submits the case for judgment

on the basis of the evidence for the
prosecution. (15a)
DEMURRER TO EVIDENCE
Q: Define demurrer to evidence.
The motion for leave of court to file demurrer

to evidence shall specifically state its grounds
and shall be filed within a non-extendible
period of five (5) days after the prosecution
rests its case. The prosecution may oppose
the motion within a non-extendible period of
five (5) days from its receipt.
A: Demurrer to evidence is a motion to dismiss filed by the

defendant after the plaintiff had rested his case, on the ground of
insufficiency of evidence. (Ballentines Law Dict., 2nd Ed., p. 358)
Nature: There is only a one-sided trial, i.e., it is only the plaintiff
who has presented evidence.
If leave of court is granted, the accused shall

file the demurrer to evidence within a nonextendible period of ten (10) days from
notice. The prosecution may oppose the
demurrer to evidence within a similar period
from its receipt.
Purpose: To discourage prolonged litigation.

Q: What is the difference between the no cause of action under
Rule 16 and the no cause of action under Rule 33?
A: Under Rule 16, the ground of no cause of action is based on the
complaint, while under Rule 33, the ground of no cause of action is
based on the plaintiffs evidence.
The order denying the motion for leave of

court to file demurrer to evidence or the
demurrer itself shall not be reviewable by
appeal or by certiorari before judgment. (n)
NOTE: If the complaint states cause of action, the defendant

cannot file a motion to dismiss under Section 1[g], Rule 16 because
he hypothetically admits the allegations in the complaint. So they
have to go to trial. Now, if during the trial, the plaintiff failed to
prove his cause of action (meaning, there is really no cause of
action), it is now proper for the defendant to file a motion to
dismiss on the ground of insufficiency of evidence under Rule 33,
and not under Rule 16 because in the first place, the plaintiffs
complaint states cause of action.
It is now emphasized in Section 23, Rule 119 that a demurrer may

be filed with or without leave of court. If you file demurrer with or
without leave and it is granted, then you have no problem because
the accused will be acquitted.
The problem is, if your demurrer is denied. Meaning, the court says
that there is sufficient evidence to prove at least the guilt of the
accused. If the demurrer was filed with prior leave of court and it is
subsequently denied, the accused is allowed to present evidence to
prove his defense.
SEC. 1. Demurrer to evidence. - After the

plaintiff has completed the presentation of
his evidence, the defendant may move for
dismissal on the ground that upon the facts
and the law the plaintiff has shown no right
to relief. If his motion is denied, he shall
have the right to present evidence. If the
motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to
have waived the right to present evidence.
(1a, R35)
But if he filed the demurrer without prior leave of court and the
demurrer is denied, then you are already convicted because the
accused has forfeited his right to present evidence. It is practically
equivalent to a waiver of his right to present evidence. So
conviction automatically follows.
NOTE: Under the new rules on Criminal Procedure, when the
accused will file a leave of court to file a demurrer, he must
specifically state the grounds. (c.f. Rule 119, Section 23, third
paragraph)
Now, there is a similar rule in criminal procedure under Rule 119,

Section 23 demurrer to evidence in criminal cases. Rule 33 is
demurrer to evidence in civil cases.
Alright, that is in criminal cases. There is a similar rule in civil cases,

Rule 33.
DEMURRER TO EVIDENCE IN CRIMINAL CASES

DEMURRER TO EVIDENCE IN CIVIL CASES
SEC. 23. Demurrer to evidence. After the
prosecution rests its case, the court may
dismiss the action on the ground of
insufficiency of evidence (1) on its own
initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or
without leave of court.
Q: Under the Rule on Trial, who presents evidence first?

A: It is the plaintiff. The plaintiff presents evidence to prove his
cause of action. He must prove his case or his claim by
preponderance of evidence.
Q: Suppose after the plaintiff has rested, the plaintiff has not
proven his cause of action?
If the court denies the demurrer to evidence

filed with leave of court, the accused may
adduce evidence in his defense. When the
demurrer to evidence is filed without leave of
court, the accused waives the right to present
To borrow the language of the law, after the plaintiff has

completed the presentation of his claim, the defendant may move
for dismissal on the ground that upon the facts and the law, the
314

plaintiff has shown no right to relief. Meaning, you have not

proven your cause of action by preponderance of evidence.
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
(Radioweath Finance Corporation vs. del Rosario 335
SCRA 288).
3)
A demurrer to evidence abbreviates judicial proceedings,

it being an instrument for the expeditious termination of
an action. Caution, however, must be exercised by the
party seeking dismissal of a case upon this ground as
under the rules, if the movants 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 defendants 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 further proceedings; rather, it
should render judgment on the basis of the evidence
presented by the plaintiff (The Consolidated Bank and
Trust Corporation vs. Del Monte Motor Works, Inc., GR
No. 143338, July 29, 2005).
Demurrer to Evidence and Motion to Dismiss under R 16

1)
Demurrer is presented after the plaintiff has rested his

case while a motion to dismiss is presented before a
responsive pleading is served by the defendant;
2)
A demurrer is grounded on insufficiency of evidence

while a motion to dismiss has several grounds;
3)
if the motion is denied the defendant may present his

evidence while if the motion to dismiss is denied the
defendant may file his responsive pleading;
4)
If the motion is granted, the complaint is dismissed. The

remedy of the plaintiff is to appeal while if the motion to
dismiss is granted, the complaint is dismissed and
depending on the ground, the complaint may be re-filed.
Effect of Denial of the Demurrer to Evidence

1)
2)
If the demurrer is denied, the defendant shall have the

right to present his evidence (Sec. 1). This means that
the denial of the demurrer to evidence does not deprive
the defendant to adduce evidence in his behalf.
Q: Suppose the court agrees with the defendant and his motion is
granted. In other words, the defendant has succeeded in dismissing
the complaint without even presenting his own side I won a
boxing bout without even throwing a single punch. What will
happen now?
Where a court denies a demurrer to evidence, it should

set the date for the reception of the defendants
evidence in chief. It should not proceed to grant the
relief demanded by the plaintiff (Northwest Airlines, Inc.
vs. CA 284 SCRA 408).
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 vs. Sandiganbayan
405 SCRA 558).
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 vs. Comelec 353
SCRA 724). The Rules of Court, under the express dictum
in Sec. 4 of Rule 1 shall not apply to election cases, land
registration, cadastral, naturalization and insolvency
proceedings
A: The court will dismiss the case. BUT if plaintiff appeals to the CA
and insists that his evidence is sufficient to prove his cause of
action, therefore the order of the dismissal by the RTC is wrong,
and CA agrees with the plaintiff that the plaintiffs evidence is
sufficient to prove his claim the CA will reverse the order of
dismissal. The CA will immediately now decide the case in favor of
the plaintiff and the plaintiff will automatically win.
Q: The defendant may argue: Well, the order was reversed. Eh di
ibalik ang kaso. Lets go back to the RTC and let me present my
side. Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial
court and is reversed on appeal, the defendant loses forever his
right to present his evidence. Therefore defendant has no more
right to present his side. That is tantamount to saying the
defendant automatically loses the case.
Favorite BAR QUESTION: How do you distinguish the rule on
demurrer of evidence in civil cases with the rule of demurrer in
criminal cases?
Effect of Granting of the Demurrer to Evidence

If the motion is granted but on appeal the order of dismissal
is reversed he shall be deemed to have waived the right to
present evidence.

1)
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 the right to present
evidence (Sec. 1; Republic vs. Tuvera GR No. 148246,
February 16, 2007).
In CIVIL cases when the demurrer is denied, the

defendant will now present his evidence to prove his
defense because the defendant does not waive his right
to present in the event the demurrer is denied; whereas
In CRIMINAL cases, if the demurrer of the accused is
denied the accused is no longer allowed to present
evidence if he had no prior leave of court;
315

2)
of the case, that is before a responsive pleading is filed by the

movant and within the period for the filing thereof.
In CIVIL cases, if the defendants demurrer is granted and

the case is dismissed and the plaintiff appeals to the
appellate court and on appeal the court reverses the
order of dismissal, the appellate court renders judgment
immediately in favor of the plaintiff. There is no more
remanding. The defendant loses his right to present
evidence; whereas
Judgment on Demurrer to Evidence is a judgment rendered by the

court dismissing a case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that upon the facts
presented and the law on the matter, plaintiff has not shown any
right to relief.
In CRIMINAL cases, if the demurrer is granted, there is

no more appeal by the prosecution because the accused
has already been acquitted. Otherwise, there will be a
case of double jeopardy;
3)
Note: The requirement under the Rule would apply if the demurrer
is granted, for in this event, there would in fact be adjudication
upon the merits of the case, leaving nothing more to be done
(Nepomuceno v. COMELEC, GR No. L-60601, Dec. 29, 1983).
In CIVIL cases, the court cannot on its own

initiative, dismiss the case after the plaintiff rests
without any demurrer by the defendant. There is no such
thing as motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on
its own initiative after giving the prosecution the chance
to present its evidence.
In both cases, the motion is raised only after the prosecution or the
plaintiff has presented his case and the ground is based on
insufficiency of evidence.
Take note that under Rule 9 of the Old Rules of Court, defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. Among the exceptions (lack of
jurisdiction, res adjudicata, etc.) is when there is no cause of
action. Meaning, the ground of no cause of action cannot be
waived. The same can be raised at any stage during the trial or
even on appeal.
Now, such ground is not anymore found under the New Rules.
What does it mean? Do you mean to tell me that such ground is
waivable now? NO. The ground of no cause of action is now
incorporated under Rule 33, such that during the trial when there is
really no cause of action, your remedy is to file a demurrer to
evidence under Rule 33. So there is no need to refer to Rule 9
anymore.
ENOJAS vs. COMELEC 283 SCRA 229 [1997]
HELD: The motion to dismiss on the ground of jurisdiction can be
easily be differentiated from a motion to dismiss on demurrer to
evidence in that, in the latter case, the movant admits the truth or
factual allegations in the complaint and moves for the dismissal of
the case on the ground of insufficiency of evidence. The legal effect
and consequence of a demurrer to evidence is that in the event
that the motion to dismiss on demurrer to evidence is granted and
the order of dismissal is reversed on appeal, the movant loses his
right to present evidence in his behalf.
However, in a motion to dismiss on the ground of lack of
jurisdiction, the movant does not lose his right to present
evidence.
It likewise bears stressing that a demurrer to evidence under Rule
33 is in the nature of a motion to dismiss on the ground of
insufficiency of evidence and is presented after the plaintiff rests its
case. It thus differs from a motion to dismiss under Rule 16 which is
grounded on preliminary objections and is presented at the outset
316

Rule 34
3)
JUDGMENT ON THE PLEADINGS
Illustration:
SEC. 1. Judgment on the pleadings.- Where an

answer fails to tender an issue, or otherwise
admits the material allegations of the
adverse party's pleading, the court may, on
motion of that party, direct judgment on such
pleading. However, in actions for declaration
of nullity or annulment of marriage or for
legal separation, the material facts alleged in
the complaint shall always be proved. (1a,
R19)
PROBLEM: Plaintiff files a complaint. Defendant files an answer.

The answer contains what you call defenses negative, affirmative
defenses. Now, after the defendant files the answer, his issues are
joined. Next step is pre-trial. If the case is not terminated in pretrial, next step is trial. Thats the procedure.
But suppose I will file a complaint against you and you file your
answer where you admitted everything that I said in my complaint.
All the allegations in the complaint are admitted and no defense
was interposed by the defendant. So, meaning, the defendant filed
an answer which contains no defense at all. Everything is admitted.
Should the case go to trial? Should the plaintiff prove his cause of
action? What is there to prove when you admitted everything? So,
there is no more trial because everything is admitted by the
defendant.
Judgment on the pleadings is an expeditious way of terminating a

civil action. There is no more trial and judgment will be rendered
based on what the plaintiff says in his pleadings.
Judgment on the pleadings is a judgment rendered by the court if
the answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading.
Q: In the above case, what should the plaintiff do?

A: The plaintiff will now apply Rule 34. He will file a motion in court
which is known as Judgment on the Pleadings. He will ask the court
to render judgment based on what the complaint says and what
the answer says. No more evidence. Eto ang sabi ng complaint,
Oh! You borrowed money, and you did not pay. Sabi ng answer,
admit! admit! admit! Oh, ano pa? What is there to be tried?
You admitted everything, so the court will now decide! You can
render a decision based on what the complaint says and what the
answer says and the court will immediately render judgment for
the plaintiff. So wala ng trial.
It is rendered without a trial, or even without a pre-trial.

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 partys pleading (Sec. 1)
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 are deemed
admitted (sec. 11 R 8).
3)
When there is no answer, the proper remedy for the

plaintiff is to file a motion to declare defendant in
default.
Rule 34 is one of the procedures or remedies under the Rules of

Court for the prompt expeditious resolutions of civil actions one
of the fastest ways of resolving a civil dispute because plaintiff files
the complaint, defendant files his answer, plaintiff asks for
judgment and the case is decided. No more pre-trial, no more trial.
Why? There is nothing to try kasi wala ka mang depensa.
Everything that I say in my complaint you admit.
Grounds for Judgment on the pleadings
A motion is required
Q: Under Rule 34, what are the grounds for Judgment on the
Pleadings?
A judgment on the pleadings must be on motion of the claimant.

However, if at the pre-trial the court finds that a judgment on the
pleadings is proper, it may render such judgment motu proprio
(sec. 2g R 18)
A: The following are the grounds:

1)
2)
One who prays for judgment on the pleadings without offering

proof of his own allegations and without giving the opposing party
any opportunity to introduce evidence must be understood to
admit all the material and relevant allegations of the opposing
party and to rest his motion for judgment on those allegations
taken together with such of his own as are admitted in the
pleadings (Falcasantos vs. How Suy Cheng GR No. l-4229, May 29,
1952)
When an answer fails to tender an issue; or

When an answer otherwise admits all the material
allegations of the adverse partys pleading.
Q: When does an answer fail to tender an issue?

A: An answer fails to tender an issue:
1)
Allegations not deemed admitted by filing a motion for judgment

on the pleadings:
1)
2)
Allegations of damages in the complaint.
when it neither admits nor denies the allegations in the

complaint;
It neither admits nor denies. So, you cannot do that.
Either you admit or you deny the allegations in the
complaint. You cannot say, Defendant does not admit,
he does not also deny the allegation. Meaning you are
trying to be evasive. That is not allowed.
Irrelevant allegations;
Immaterial allegations; and
317

3)
2)
when all the denials in the answer are general denials

and not specific.
4)
A denial is general if the pleader does not state the facts
relied upon in support of his denial Defendant denies
the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.
That is an answer which does not tender an issue
because all the denials are general, or no knowledge or
information sufficient to form a belief. Just like what
happened in the case of CAPITOL MOTORS vs. YABUT.
So, judgment on the pleading is not allowed on actions for nullity of

marriage or for legal separation. It cannot be resolved based only
on what the complaint and what the answer says. Otherwise, if we
will allow Rule 34 in that kind of action, then it is very easy for
husbands and wives to have their marriages annulled or in
obtaining a legal separation. So, the husband and the wife, they
quarrel and they decide: O, sige. I-admit mo lahat para judgment
on the pleadings na! Eh, di tapos!
Note: By moving for judgment on the pleadings, plaintiff

waives his claim for unliquidated damages. Claim for such
damages must be alleged and proved.
My golly! The court will never allow that to succeed simply

because the other party admitted everything. That would be a
license for collusion. Its not as easy as that. Walang judgment on
the pleading sa marriage. In other words, no allegation is deemed
admitted even if the other party admits. You still have to prove or
disprove.
So if an answer contains evasive allegations, denials which are

general, it does not also tender any issue aside from the fact that it
also admits the law. Consider it as an admission of the material
allegations of the complaint. Therefore plaintiff will now move for
an immediate judgment in his favor. That is why it is called
judgment on the pleadings.
So, the premise is similar to Rule 9 on Defaults. There is no default

judgment in actions for legal separation based on the same
principle eh! It is a one-sided story and collusion or connivance
between the parties is possible.
Now, judgment on the pleadings has already been mentioned in

the previous rule that we took up. Lets go back to pre-trial in Rule
18 because there is a mention there on judgment on the pleadings.
Section 2, Rule 18:
Motion to Dismiss and Motion for Judgment on the pleadings
SEC. 2. Nature and purpose. - The pre-trial

is mandatory. The court shall consider:
A motion to dismiss is filed by a defendant to a complaint,

counterclaim, cross claim or third-party complaint; while a the
latter is filed by the claiming party if the answer fails to tender an
issue or admits the material allegations in the claim.
xxx
g) The propriety of rendering judgment on
the pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist.
xxx
Note: If the complaint states no cause of action, a motion to

dismiss should be filed and not a motion for judgment on the
pleadings.
A judgment on the pleadings is one that is considered ex parte
because upon particular facts thus presented, the plaintiff is
entitled to judgment or motu proprio under Rule 18 2g (Dino v.
Valencia GR No. L-43886 July 19, 1989)
In other words, during the pre-trial, the defendant there and based
on his pleadings, meron siyang defense. But during the pre-trial, he
makes now an admission, Actually, your honor, wala akong
depensa ba. I have no defense. Court: Ah, wala ka ba? Okay.
Judgment on the pleadings! tapos!
Or, another example: Collection case. According to the defendant
in his answer the obligation is paid. And then during the trial, the
court asks the defendant, Are you serious that the obligation is
paid? Defendant: Actually your honor, wala pa. Hindi pa bayad.
Court: Ganoon ba? O plaintiff, what do you say? Plaintiff: I move
for judgment on the pleadings. Tapos! The case is finished
because the admission is made in the course of the pre-trial that he
has no valid defense.
CASES WHERE JUDGMENT ON THE PLEADINGS WILL NOT
APPLY
Q: Give the exceptions to the rule on judgment on the pleadings.
A: Judgment on the pleadings does not apply:
1)
2)
when the issue is the amount of unliquidated damages

because there must always be evidence to prove such
amount (Rule 8, Section 11);
when only conclusions of law are being alleged.
in actions for declaration of nullity or annulment of

marriage; or
in actions for legal separation;
318

Rule 35
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. CA 329 SCRA 392; Garcia vs. CA 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 (Sps. Agbada vs. InterUrban Developers Inc., supra)
SUMMARY JUDGMENTS
Rule 35 is another important rule Summary judgments. The rule
on summary judgments and judgment on the pleadings are similar
no? They are related to each other. I would say they are brothers.
Rule 34 and Rule 35, magkapatid yan silang dalawa because they
have a common denominator. Rule 35 is also a speedy procedure
for the early resolution or decision in a civil case. The same
concept but with a difference. In Rule 34 on judgment on the
pleadings, the answer filed by defendant has put up no defense at
all. No defense has been raised or the answer admits all the
material allegations in adverse partys pleadings. In Rule 35, the
answer filed by defendant puts up a defense but the defense is not
a genuine defense. Meaning, it is invoked only for the purpose of
delay and the defense is not actually seriously being interposed.
Q: Define summary judgment procedure.
Where only the genuineness and 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.
A: Summary judgment procedure is a method for promptly

disposing of actions in which there is no genuine issue as to any
material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)
Summary judgment is a judgment rendered by a court without trial
if it is clear that there exists no genuine issue or controversy as to
any material @fact, except as to the amount of damages.
In an action for a sum of money, where the debt and the

fact of its non-payment is admitted and the only issue
raised is the rate of interest and the damages payable,
there is no genuine issue and a summary judgment may
be rendered upon proper motion.
For summary judgment to be proper, two (2) requisites must

concur, to wit:
4)
1)
2)
there must be no genuine issue on any material fact,

except for the amount of damages; and
the moving party must be entitled to a judgment as a
matter of law.
Under the Rules, summary judgment is appropriate

when there is 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 prescribed 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.
When on their face, the pleadings tender a genuine issue, summary

judgment is not proper. An issue is genuine if it requires the
presentation of evidence as distinguished from a sham, fictitious,
contrived or false claim. (Ontimare vs. Elep GR No. 159224, January
20, 2006)
Even if the answer does tender an issue, and therefore a judgment
on the pleadings is not proper, a summary judgment may still be
rendered if the issues renderer are not genuine, set-up in bad faith
and patently insubstantial (Vergara vs. Suelto GR No. L-74766, Dec.
21, 1987)
Meaning of genuine issue
Nature of Summary Judgment

1)
The Court, in Asian Development and Construction

Corporation vs. PCIB, GR No. 153827, April 25, 2006,
reiterated the principles governing summary judgment as
follows:
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.
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 vs. Union
Bank GR No. 133801 June 27, 2000; Spouses Agbada vs.
Inter-Urban developers Inc., GR No. 1445029, September
19, 2000; Raboca vs. Velez 341 SCERA 543). Under the
Rules, when there is no genuine issue as to any material
fact, other than for instance, the amount of damages, and
the moving party is entitled to a judgment as a matter of
law, a summary judgment may be rendered.
319

Genuine issue is an issue of fact which calles for the

presentation of evidence as distinguished from an issue
which is shamm, fictitious, contrived, and patently
unsubstantial so as not to constitute a genuine issue for
trial.
5)
Q: As the plaintiff, what should I do?

A: I should execute affidavit stating under oath and under pain of
perjury that you have not paid me. I will attach that to my motion.
Well, of course, you know very well that if I file an affidavit by
stating that what you are saying is false, and if I tell a lie, you can
file a case of perjury against me. But since I know that I am correct,
I will dare to execute an affidavit under oath. Therefore, since his
defense is false, Im asking for an immediate decision.
The trial court cannot motu proprio decide that summary

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 vs. Heirs of Eliseo Guevara GR No. 143188,
February 14, 2007).
Now, if you are the defendant and you received a copy of my

motion, you can oppose my motion for summary judgment where
you will say, No! I paid and my defense is genuine! The defendant
must also execute an affidavit to support his position. So you will
say under oath that you paid me.
So it will become a battle of affidavits versus affidavits under oath.
It is possible that one of us will go to jail for telling a lie. So tingnan
natin kung sinong matapang dito. Kung baga, if your defense is not
very serious and not genuine, chances are, you will not dare to
execute an affidavit claiming that you have paid the obligation.
Takot ka man diyan ba. So if you will not execute an affidavit but
you still claim that you have paid me, it is now very obvious that
the defense of payment is false and the court will say, Tama na
ang pagsisinungaling! Taob ka na!
Relation to Rule 17 and Rule 18

Now, Summary Judgment is related to Rule 17 Section 1 in which
summary judgment is first mentioned:
Rule 17, Section 1. Dismissal upon notice by
plaintiff. - A complaint may be dismissed by a
plaintiff by filing a notice of dismissal at any
time before service of the answer or of a
motion for summary judgment. xxx
That is summary judgment where the court will say, No more trial.
The affidavit will take the place of evidence in court. That is what
the rule is all about.
Rule 35 is similar to judgment on pleadings under Rule 34 but the
main difference is: In judgment on the pleadings, the answer does
not put up a defense while in summary judgment, here it puts up a
defense but the defense is not genuine it is a false defense which
should easily be exposed by way of affidavits for summary
judgment.
Q: Can the plaintiff dismiss his complaint as a matter of right?

A: YES, at any time before the defendant has filed his answer or of
a motion for summary judgment. (Rule 17, Section 1)
The second time that it was mentioned was in Rule 18 Section 2:
Now take note, there is no genuine issue because if you look at the
complaint and the answer there is an issue because the answer
alleges payment. That is an issue. But in reality that is a false issue.
That is why it is not a genuine issue.
Rule 18, Sec. 2.

Nature and purpose. The pre-trial is mandatory. The court shall
consider:
xxx
Some text writers call the law on summary judgment another name
it is known as the law on Accelerated Judgment. Meaning, the
process will accelerate, you can easily go to trial. Instead of going
to trial, there is no more trial. The motion for summary judgment
will determine who is telling the truth and who is not telling the
truthimmediately. So at least, the delay has been avoided.
(g) The propriety of rendering judgment on

the pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
xxx
What is the example I gave you, no? A party seeking to recover a

claim Ako, I will file against you a case of recovery of an unpaid
debt. or cross-claim etc. at any time after the pleading if answer
thereto has been served meaning , after your answer has been
served, I will move with supporting affidavits, depositions or
admissions for a summary judgment in my favor.
Sec. 1.
Summary judgment for claimant. - A
party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served,
move with supporting affidavits, depositions
or admissions for a summary judgment in his
favor upon all or any part thereof. (1a, R34)
So my motion for summary judgment must be supported with

affidavits, or depositions, or admissions. These will be the basis
unlike in the previous rule (Rule 34), there are no affidavits to
support a judgment on the pleadings. All you have to do is ask the
court , Look at the complaints and look at the answer But here,
you will prove that the defense is false and you demolish it by way
of affidavits.
For EXAMPLE: I will file a collection case against you and then you
claim that you have paid already. But in reality, it is not paid. So I
know that you are lying. Ikaw naman na defendant, you know also
that you are lying, what you are after is to prolong the case.
320

Q: Is summary judgment applicable to all kinds of civil actions?
SEC. 3. Motion and proceedings thereon. The motion shall be served at least ten (10)
days before the time specified for the
hearing.
The adverse party may serve
opposing
affidavits,
depositions,
or
admissions at least three (3) days before the
hearing. After the hearing, the judgment
sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as
to the amount of damages, there is no
genuine issue as to any material fact and that
the moving party is entitled to a judgment as
a matter of law. (3a, R34)
A: YES, because in most cases, defendants will file an answer with

defenses but they are all false. In other words, these defenses are
only interposed to delay the case. So, summary judgment is
applicable to accelerate the decision. Thats why it is similar to
Judgment on the Pleadings.
Just like in the previous rule (Judgment on the Pleadings) in certain
types of cases like declaration of nullity of marriage, annulment of
marriage, legal separation, based on the same principle that there
must always be a trial in these cases, where a ground was
established based on the same principle of analogy.
Q: Is Summary Judgment available only to the plaintiff? Can a
defendant move for Summary Judgment against the plaintiff?
The motion must also satisfy the requirements under Rule 15
A: YES, that is also allowed under Section 2:
If I will file a motion for Summary Judgment, I must set it for a

hearing just like any other motion. Now, generally, if I will file a
motion for Summary Judgment, you must be served a copy at least
10 days before the hearing. Thats an exception to the general rule
in Rule 15 (general rule: you are only required to give the other
party 3 days).
Sec. 2.
Summary judgment for defending
party. - A party against whom a claim,
counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time,
move with supporting affidavits, depositions
or admissions for a summary judgment in his
favor as to all or any part thereof. (2a, R34)
The reason is the other party should also be given time to oppose it
with affidavits. Thats why you have to give him a longer period to
oppose and if he decides to oppose, he must also file his opposition
together with affidavits but he must furnish me with his copy of
opposition at least 3 days before the hearing.
Who can file:

1)
2)
Plaintiff - may file the motion after the answer has been
served, and therefore, must wait until the issues have
been joined.
Defendant - he can move for summary judgment at any
time.
Under the rule on deposition, I can take the deposition of my own

opponent and based on your deposition, I can prove that your
defense is false. So depositions can be used not only during the
trial but to support or oppose a motion for Summary Judgment.
Test: Whether or not the pleadings, affidavits and exhibits in

support of the motion are sufficient to oversome the opposing
papers and to justify the finding that, as a matter of law, there is no
defense to the action or claim is clearly meritorious (Estrada vs.
Consolacion, et al., GR No. L-40948 June 29, 1976).
Rule 23, SEC. 4. Use of depositions At the

trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a
deposition, so far as admissible under the
rules of evidence, may be used against any
party who was present or represented at the
taking of the deposition, or who had due
notice thereof, in accordance with any one of
the following provisions:
xxx
Normally, the party who avails of summary judgment is the

plaintiff. But this remedy is not limited to the plaintiff. The
defendant can also file a motion for Summary Judgment against the
plaintiff because the cause of action is sham. SO, if the remedy of
Summary Judgment is available to the plaintiff, it can also be
availed by the defendant. How?
So, depositions can be used at the trial or upon the hearing of a

motion.
EXAMPLE: You file a complaint against me. Of course, your

complaint puts up a cause of action, but I know very well that your
cause of action is false, although its very rare, usually it is the
defendant who is delaying the case. Well, I could always file an
answer and there would be pre-trial but sabi ko, Matagal pa
iyon! So under Section 2, instead of filing an answer, I can file a
motion for Summary Judgment and I will attach to my motion
affidavits to show that the cause of action is not genuine. And if
the plaintiff believes that his cause of action is genuine, he might as
well oppose my motion with counter-affidavits. Now, if you will
not, then the court will rule in my favor, dismissing your complaint.
Q: Give examples of a motion where you can use a deposition to

support your motion.
A: The following:
1)
So you notice, Summary Judgment may be availed of by either

party either the defense is not genuine or the cause of action is
not genuine.
321
a motion for Summary Judgment. Under Rule 35, the

motion should be supported by affidavits, depositions,
etc based on what the other party will admit. And
based on Rule 23 Section 4, the deposition of the
adverse party may be used for any purpose. So I can use
it to prove that your cause of action or defense is false,
or another way of supporting a motion for Summary
Judgment under Rule 35, affidavits, depositions and
admissions.

2)
Rule 26 Request for Admission I can avail of the

Mode of the Request for Admission based on your
admissions.
conducted on the
accordingly. (4a, R34)
controverted
facts
Section 4 authorizes rendition of partial summary judgment but

such is interlocutory in nature and isfinal a final and appealable
judgment. (Guevarra vs. CA GR No. L-49017, August 30, 1983).
According to Section 3, all the issues which are not genuine can be
resolved immediately EXCEPT as to amount of damages. Meaning
the amount of damages to be recovered by the plaintiff cannot be
adjudicated through a motion for Summary Judgment because you
still have to present evidence as to how much really is the
damages.
Q: Is there such a thing as a motion for partial Summary Judgment?

A: YES. Well, if you say Motion for Partial Summary Judgment,
some issues are genuine, some are not. So the court can decide
immediately on the issues which are not genuine but with respect
to issues which are genuine, the law says, trial shall be conducted
on the controverted facts summarily under Rule 35 on the issues
which are not genuine.
Practically every issue can be resolved summarily except the exact

amount of damages. Some people find this hard to imagine,
Paano ba yon? I will file a motion for Summary Judgment and
then there will be a judgment except as to the amount of damages?
Ano ba yan?
SEC. 5. Form of affidavits and supporting

papers. - Supporting and opposing affidavits
shall be made on personal knowledge, shall
set forth such facts as would be admissible in
evidence, and shall show affirmatively that
the affiant is competent to testify to the
matters stated therein. Certified true copies
of all papers of parts thereof referred to in
the affidavit shall be attached thereto or
served therewith. (5a, R34)
EXAMPLE: An action for damages based on quasi-delict where I

will accuse you of negligence and then you deny that you are
negligent. Now, the issue is: who is negligent and who is not.
Suppose I will file motion for Summary Judgment and the court will
decide in my favor. Therefore I am telling the truth, the defendant
is telling a lie. And then the court will say, Let the case be heard to
determine exactly how much damages the plaintiff is supposed to
recover. So there will be a trial but during the trial, I will just
prove how much I am entitled. But the issue of negligence, tapos
na, talo ka na, terminated na yung issue. Damages generally
cannot be granted without evidence. You have to support really the
exact amount you are entitled to receive.
Q: What are the forms of affidavits under Rule 35?

A: The following:
If you will notice, the issue as to the fact that damages, especially
unliquidated damages,which is also subject to proof, is also
mentioned in Rule 8, Section 11:
1)
2)
Rule 8, SEC. 11. Allegations not specifically

denied deemed admitted Material averment
in the complaint, other than those as to the
amount of unliquidated damages, shall be
deemed admitted when not specifically
denied.
Supporting affidavits to support the motion for

Summary Judgment;
Opposing (counter-) affidavits to oppose the motion
for Summary Judgment.
Q: Give the requisites of supporting or opposing affidavits to a

motion for Summary Judgment.
A: The following:
Meaning, how much are you entitled cannot be just given to you
even if your opponent will not deny an allegation. You must still
prove it and that is very clear even in Rule 35 summary judgment
can be granted except as to the amount of damages.
1)
2)
3)
SEC. 4. Case not fully adjudicated on motion. If on motion under this Rule, judgment is not
rendered upon the whole case or for all the
reliefs sought and a trial is necessary, the
court at the hearing of the motion, by
examining the pleadings and the evidence
before it and by interrogating counsel shall
ascertain what material facts exist without
substantial controversy and what are actually
and in good faith controverted. It shall
thereupon make an order specifying the facts
that appear without substantial controversy,
including the extent to which the amount of
damages or other relief is not in controversy,
and directing such further proceeding in the
action as are just. The facts so specified shall
be deemed established, and the trial shall be
4)
The affidavit shall be made based on personal

knowledge;
It shall set forth such facts as would be admissible in
evidence;
The affiant is competent to testify to the matters stated
therein; and
Certified true copies of all papers of parts thereof
referred to in the affidavit shall be attached thereto or
served therewith.
The affidavits of your witnesses, or your affidavit must be made

on personal knowledge and shall set forth such facts as would be
admissible in evidence and shall show affirmatively that the
affiant is competent and the matters stated therein.
What does that mean? Suppose the case will go to trial, so the
witness will take the witness stand. He will testify. When a witness
testifies under the Rules on Evidence, there must be a showing that
what he is talking about is known by him. Otherwise, it will be
hearsay. And based on the law of evidence, the testimony is
inadmissible. What I will say should be admissible under the law on
evidence otherwise my testimony will not be allowed and I must
show that Im in a position to know what Im talking about.
322

Thats what the witness will have to demonstrate in court. Since in

a motion for Summary Judgment, there is no more trial, there is no
more witnesses who will testify in court, what will take the place of
a witness is his affidavit which must also show that the witness has
personal knowledge, etc. Meaning, what you should show during
the trial, if you are, they must also be shown in your affidavit.
b)
after hearing, adjudge you or your lawyer guilty of

contempt.
Additionally a case of perjury against can be filed against the affiant

for executing a false statement.
That is a criminal sanction under the RPC. I can also file a case of
disbarment against the lawyer for assisting in the filing of an
affidavit in bad faith.
If your testimony in court is not admissible, because you are telling

only what you heard from other people, then an affidavit which
contains the same thing would also be inadmissible. So, in other
words, the affidavit merely takes the place of oral testimony in
court.
So in other words, if you execute an affidavit in bad faith, you must

be ready to face all these later damages, contempt, perjury under
the RPC and the lawyer to face disciplinary proceedings.
Q: What procedure is similar where the one who will decide, who
will only read the affidavits of both sides and render a decision?
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE

PLEADINGS (Rule 34)
A: Criminal Procedure: Rule 112 on Preliminary Investigation the

fiscal conducts a preliminary investigation on the affidavits lang.
The complainant will submit his affidavit. The respondent will file
his counter-affidavit. Then the fiscal will go over the affidavits and
will resolve the issues and determine whether there is probable
cause to file the information or none. So, the resolution is
practically based on affidavits. So walang hearing.
Their similarity is that, both of them are methods for promptly

disposing civil actions, wherein a civil case can be adjudicated
without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on the
Pleadings (Rule 34).
SEC. 6. Affidavits in bad faith. - Should it

appear to its satisfaction at any time that any
of the affidavits presented pursuant to this
Rule are presented in bad faith, or solely for
the purpose of delay, the court shall
forthwith order the offending party or
counsel to pay to the other party the amount
of the reasonable expenses which the filing of
the affidavits caused him to incur, including
attorney's fees. It may, after hearing, further
adjudge the offending party or counsel guilty
of contempt. (6a, R34)

1)
as to the ground
Summary Judgment is proper if there is no genuine issue
of fact to be tried; whereas
Judgment on the Pleadings is proper where there is no
issue of fact at all to be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)
2)
Well, of course, the affidavits required by law must be filed in good
faith.
as to how the judgment rendered

Summary Judgment is rendered on the basis of facts
appearing in the pleadings, affidavits, depositions and
admissions on file, whereas
EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for

Summary Judgment against you alleging that your defense is false
and I will support it with affidavit. Ang defendant, malakas ang
loob, he opposed my motion claiming that his defense is true and
genuine and he also supported it with affidavits. Once the
opposing party does that, the court will automatically deny my
motion. The court is not in the position now to know who is telling
the truth. Both maintaining under oath that he is telling the truth.
So if you oppose my motion with supporting affidavits, the court
will deny my motion for Summary Judgment and the courts says
lets go to trial and during the trial, mabisto na naman and it turned
out really that you have no defense, talo ka pa rin.
Judgment on the Pleadings is rendered on the basis only

of the pleadings; (Nagrampa vs. Mulwaney, Etc., 97 Phil.
724)
3)
as to who can ask for the judgment

Summary Judgment is a remedy available for both
claimant and defendant; whereas
Judgment of Pleadings is available only on the claimant
because the answer fails to tender an issue.
Sanctions:
4)
In Summary Judgment a 10-day notice is required while

in Judgment of Pleadings the 3-day notice rule applies;
5)
A Summary Judgment may be interlocutory or on the

merits while Judgment of Pleadings is one the merits;
6)
A Summary Judgment is available only in actions to

recover a debt or for a liquidated sum of money or for
declaratory relief while the latter is available in any
Q: What is the penalty for you for filing earlier an opposition to my

motion supported by affidavits in bad faith?
A: The court may:
a)
order you or counsel to pay to me (plaintiff) the amount

of reasonable expense which the filing of affidavits
caused me to incur, including attorneys fees; and
323

action except annulment of marriage or legal separation

cases;
7)
summary judgment as to which the crucial question is: issues

having been raised by the pleadings, are those issues genuine, or
sham or fictitious, as shown by affidavits, depositions or admissions
accompanying the application therefor? So those are the
questions to be answer in a summary judgment, not whether or
not there is an answer.
Errors on principles so clear and fundamental as those herein
involved cannot but be deemed so egregious as to constitute grave
abuse of discretion, being tantamount to whimsical or capricious
exercise of judicial prerogative.
If filed by the plaintiff, it must be filed at any time after

an answer is served; if filed by the defendant, it may be
filed even before there is an answer while the judgment
is filed after there is already an answer filed.
VERGARA, SR. vs. SUELTO, ET AL 156 SCRA 753

ISSUE: When does an answer fail to tender an issue? When is there
no genuine issue?
Last point to remember: as a General Rule, you cannot secure

judgment by motion alone. This is because a MOTION is defined as
any petition for relief other than the relief prayed for in the
pleadings. (Rule 15, Section 1)
HELD: Section 1, Rule 19 (now Rule 34) of the Rules of Court

provides that where an answer fails to tender an issue, or
otherwise admits the material allegation of the adverse party's
pleading, the court may, on motion of that party, direct judgment
on such pleading. The answer would fail to tender an issue, of
course, if it does not comply with the requirements for a specific
denial set out in Section 10 (or Section 8) of Rule 8; and it would
admit the material allegations of the adverse party's pleadings not
only where it expressly confesses the truthfulness thereof but also
if it omits to deal with them at all.
A motion prays for relief other than through a pleading. The other
way of stating it is, a motion prays for relief other than through a
judgment because a judgment is prayed in a pleading and not in a
motion. So a motion as a rule, cannot pray for immediate
judgment.
But there are three (3) known exceptions where a motion can
already pray for immediate relief. They are:
Now, if an answer does in fact specifically deny the material

averments of the complaint in the manner indicated by said Section
10 of Rule 8, and/or asserts affirmative defenses (allegations of
new matter which, while admitting the material allegations of the
complaint expressly or impliedly, would nevertheless prevent or
bar recovery by the plaintiff) in accordance with Sections 4 and 5 of
Rule 6, a judgment on the pleadings would naturally not be
proper.
1)
2)
3)
Rule 33 Demurrer to evidence;

Rule 34 Judgment on the Pleadings; and
Rule 35 Summary Judgment.
In those exceptions, the movant is already asking for a judgment

which normally is not stated in a motion.
But even if the answer does tender issues and therefore a

judgment on the pleadings is not proper a summary judgment
may still be rendered on the plaintiff's motion if he can show to the
court's satisfaction that except as to the amount of damages, there
is no genuine issue as to any material fact, that is to say, the issues
thus tendered are not genuine, are in other words sham, fictitious,
contrived, set up in bad faith, patently unsubstantial. The
determination may be made by the court on the basis of the
pleadings, and the depositions, admissions and affidavits that the
movant may submit, as well as those which the defendant may
present in his turn.
During the pre-trial conference, it is possible for the court to render

a judgment on the pleadings under Rule 34 or a summary judgment
under Rule 35. Judgment can be rendered summarily during the
pre-trial.
DIMAN vs. ALUMBRES 299 SCRA 459 [Nov. 27, 1998]
FACTS: The plaintiff files a motion for summary judgment where
he said under oath that the defense is false. The trial court denied
it, A summary judgment is not proper where the defendant
presented defenses tendering factual issues which call for the
presentation of evidence. Is the trial court correct.
HELD: Such a ratiocination is grossly erroneous. Clearly, the
grounds relied on by the judge are proper for the denial of a
motion for judgment on the pleadings as to which the essential
question, as already remarked, is: are these issues arising from or
generated by the pleadings? but not as regards a motion for
324

Rule 36
3)
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
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 vs. Atienza GR No. 156052, February
13, 2008).
There are three (3) important stages in a civil action.

Q: What are these three (3) stages?
A: The following:
1)
First stage: Issue Formulation Stage

It is the stage in which we are trying to find out what are
the issues we are quarreling about. This is done by filing
a complaint, answer to know the defenses, counterclaim,
answer to counterclaim, third party complaint. This is
the stage of formulation of issues.
Q: What are the requisites of a valid judgment?

A: There are the requisites for a valid judgment:
After the last pleading is filed, we go to pre-trial where

we will discuss the simplification of issues, advisability of
amending the pleadings, etc. Therefore, during pre-trial
we are still formulating issues to be tackled. When the
pre-trial is terminated and there is no settlement, we
proceed to stage 2:
2)
After the case has been tried and everything has been
argued under Rule 30, the last stage is.
Third stage: Judgment Stage (Rule 36)
Q: Define Judgment.
A: Judgment is the final consideration and determination by a court
of the rights of the parties as those rights presently exists, upon
matters submitted to it in an action or proceeding. (Gotamco vs.
Chan Seng, 46 Phil. 542)
2)
the court rendering judgment must have jurisdiction over

the person of the defendant, and in case the defendant is
a non-resident, the court rendering judgment must have
jurisdiction over the res;
3)

the issues, that is, the judgment shall decide only the
issues raised by the parties in their pleadings;
4)
the court rendering judgment must be a validly

constituted court and the judge thereof, a judge de jure
or de facto; Thus, the court has not been abolished; the
judge has been appointed and has not retired nor
separated from service. That is why there is a rule even
in criminal cases that if the judgment is promulgated
after the judge has already retired, the judgment is void.
There must be another promulgation.
ABC DAVAO AUTO SUPPLY vs. CA 284 SCRA 218 [January 16,
1998]
FACTS: The case was tried by a judge (Agton) who was temporarily
assigned to Mati. He wrote the decision and had it released but by
that time, he was already back in Mati. The losing party contended
that the judgment was not valid.
A judgment is the final ruling by the court of competent jurisdiction

regarding the rights or other matters submitted to it in an action or
proceeding (Macahilig vs. Heirs of Gracia M. Magalit 344 SCRA
838).
HELD: The judgment is VALID because when the new judge denied
the motion for reconsideration, he effectively adopted in toto the
decision of the Mati judge. And besides, the Mati judge was still a
judge when he rendered his decision.
Parts of a judgment:
2)

the subject matter;
EXAMPLE: Judge tries a case, prepares the decision and

signs it. Before the decision is promulgated, the judge
died or retired. In this case, any promulgation to be
made cannot be valid. The next judge must be the one to
promulgate it write the decision again and sign it. What
is important is the judge who rendered.
This is the stage where the court will now decide and
render judgment.
1)
1)
Second stage: Stage of Proof (Rule 30 on Trial)

We are now on trial where the parties will now offer
their evidence. It is called the stage of proof. Plaintiff
presents evidence to prove his claim. Defendant
presents evidence to prove his defense. Parties present
rebutting evidence. So this is the stage where the
parties will prove their respective contentions.
3)
signature of the judge (Herrera, p. 145)
The opinion of the court - contains the findings of facts

and conclusions of law;
The subsequent motion for reconsideration of Judge Agton's

decision was acted upon by Judge Marasigan himself and his denial
of the said motion indicates that he subscribed with and adopted in
toto Judge Agton's decision. Any incipient defect was cured.
Branches of the trial court are not distinct and separate tribunals
the disposition of the case - the final and actual

disposition of the rights litigated (the dispositive part);
and
325

from each other. Jurisdiction does not attach to the judge but to
the court.
1)
the judgment must be rendered after lawful hearing,

meaning that due process must be observed. (Busacay vs.
Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L13764, Jan. 30, 1960; Rojas vs. Villanueva, 57 O.G. 7339,
Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct. 26,
1966)
ANSWER: NO. You still have to wait for the written decision.
Presumably, what is dictated by the judge will be transcribed.
From the time you receive it is the reckoning period for appeal,
notwithstanding the hearing of such decision in open court. That is
not yet the formal decision because under the law, there is no such
thing as oral decision. The judgment must be in writing.
There must be a trial where both sides are given the

chance to be heard. In case of a defaulted defendant,
due process was observed because he was given the
opportunity to defend himself. But he did not file an
answer. The essence of due process is the fact that you
are given the opportunity to be heard.
Officially the decision is known to you on the date you received the
written judgment. Not the date when he dictated it in your
presence. There are judges before who could do that. Even now
those judges in Manila who became justices today do practice such
type of judgment. At present, judges no longer possess such skill.
They are given 90 days to decide the issue and yet at times, they
could not do so within the period mandated by law. How much
more on the spot decision?
2)
The evidence must have been considered by the tribunal in

deciding the case (Acosta vs. Comelec 293 SCRA 578)
3)
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 vs. Sandiganbayan 442 SCRA 294).
4)
next day. Do you count the period of appeal from that date when
he heard the decision?
Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY

PREPARED BY THE JUDGE
It is presumed that the judgment will be made by the judge
himself. Although sometimes it happens otherwise. The judge
should not delegate the writing to other people. There must be no
ghost writer.
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 R 36; Sec. 14, Art. II, Constitution;
Report on the Judicial Audit Conducted in the MTC of
Tambulig, 472 SCRA 419). This requirement refers to
decisions and final orders on the merits, not to those
resolving incidental matters (Pablo-Gualberto vs. Gualberto
V 461 SCRA 450).
Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY

THE FACTS AND THE LAW ON WHICH IT IS BASED
The most important the decision should state clearly and
distinctly, the facts and the law on which it is based. Meaning, there
must be a justification for the dispositive portion. The judge must
argue why the party won or lost.
Sec. 1.
Rendition of judgments and final
orders. - A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by
the judge, stating clearly and distinctly the
facts and the law on which it is based, signed
by him, and filed with the clerk of the court.
(1a)
Normally in the facts, either the facts presented by plaintiff are

right and the facts presented by the defendant are wrong or viceversa. If you think the facts as presented by the plaintiff are correct
or not, you have to state why do you believe that it is correct or
not, and also with the evidence of the defendant. The same thing
with legal questions because the plaintiff or the defendant relies on
the provisions of the laws or decided cases.
Q: What are the FORMAL requisites of a valid judgment?
You have to state why the position of the defendant is wrong, why
is the law that he cited not applicable. You have to state your facts
and conclusions of law.
A: There are four (4) formal requisites:

1)
2)
3)
4)
The judgment shall be in writing;

It shall be personally and directly prepared by the judge;
It shall state clearly and distinctly the facts and the law
on which it is based; and
It shall be signed by the judge and filed with the clerk of
court.
In the SCRA, the Supreme Court will discuss both sides, According
to the plaintiff like thisAccording to the defendant like this..and
so forth. Then the decision will start by saying, While the
petitioner is correct or, While the defendant is correct
It is called the discussion of the facts and the law on which the
decision is based. It is a requirement in the Constitution, Article
VIII, Section 14:
First formal requisite: THE JUDGMENT SHALL BE IN WRITING

There is no such thing as an oral judgment
Sec. 14. No decision shall be rendered by

any court without expressing therein clearly
and distinctly the facts and the law on which
it is based. xxx (Article. VIII, 1987
Constitution)
BAR QUESTION: After the parties presented their evidence, the

judge asked the lawyers, Are you going to argue? The parties
said, No more, Your honor. We are waiving our right to argue.
So the judge dictated the decision to the clerk of court. The
judgment was against the defendant. The defendant appealed
If a judge will render a decision like this: This is a civil action to

collect an unpaid loan. According to the plaintiff: He borrowed
326

money for the sum of P80,000.00 payable on this date and despite
demands, he did not pay. According to the defendant in his answer:
the obligation is fully paid. ISSUE: Whether the loan has been paid
or not yet paid. Plaintiff, to prove his cause of action presented the
following witnesses and evidence. On the other hand, the
defendant, to prove his defense presented the following evidence.
WHEREFORE, the court renders judgment dismissing the
complaint.
This is what is called the Memorandum Decision. The concept of

memorandum decision which is found in Section 40, BP 129 is now
in Rule 51, Section 5 of the 1997 Rules, to wit:
Sec. 5.
Form of decision.- Every decision or
final resolution of the court in appealed cases
shall clearly and distinctly state the findings
of fact and the conclusions of law on which it
is based, which may be contained in the
decision or final resolution itself, or adopted
from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg.
129) (n)
Such decision has no discussion on the findings of facts and the

law. There is no basis of the dismissal of the complaint. MY
GOLLY! What kind of decision is that? There is no discussion on
why is the evidence of the plaintiff believable and why is the
position of the defendant like that. So there is no discussion of the
facts and the law on which it is based. That is a decision which
violates the Constitution and Rule 36.
So the appellate court is now authorized to simply copy or refer the

true findings of fact and conclusions at the trial court if it is
affirming the latters decision. This is what we call memorandum
decision. The SC said that it is only allowed in simple cases, not in
complicated ones.
Another Illustration:
In an action for sum of money, plaintiff is unpaid. Defendant claims
the loan has been paid. The following is the evidence of the
plaintiff and the following is the evidence of the defendant. Then
the court now says: After the meticulous study and analysis of the
evidence offered by both sides, the court is of the opinion that
plaintiffs evidence is more logical, acceptable, probable and worthy
of credit. THEREFORE, judgment is hereby rendered ordering the
defendant to pay the loan.
Q: Does the law require a particular style of writing a decision?

A: NO, style is based on every individual, so long as the facts and
the law are distinctively stated. That is the minimum requirement.
The law does not care how you do it because the manner of
presenting the facts and the law and the discussion is a matter of
style. Every person has his own style, and whether it is good or bad
does not matter as long as you comply with the law.
Q: Is this decision correct?

As a matter of fact, there are many instances where the SC
commented on the writing styles of judges. The most vehement
critics on sloppy style of decision writing is retired Justice Isagani
Cruz, because he is a very effective writer. He is intolerant of poorly
written decisions. Kaya from time to time although not necessary,
he will criticize poorly written decisions. He makes sub-comments.
Like in the cases of
A: NO. It still violates the law. There are no findings of facts or

conclusions of the law. Therefore, when the court said, plaintiffs
evidence is more logical, acceptable, probable and worthy of credit
those are conclusions. They are not findings of facts. Meaning you
have to argue why is it logical, why is it acceptable, why is it
probable, why is it worthy of credit. You must state it and rebut
the other side.
NICOS INDUSTRIAL CORP. vs. CA - 206 SCRA 127 [1992]

If that is how decisions are prepared, you just recite what the
plaintiff said or what the defendant said, and you will conclude,
Therefore, find the plaintiff is logical, then every nincompoop
person is qualified to be a judge everybody can write a decision.
HELD: Kilometric decisions without much substance must be

avoided, to be sure, but the other extreme, where substance is also
lost in the wish to be brief, is no less unacceptable either. Too long
is bad, too short is bad either. The ideal decision is that which,
with welcome economy of words, arrives at the factual findings,
reaches the legal conclusions, renders its ruling and, having done
so, ends. This means, brief but comprehensive.
It is just like asking questions in the examinations. You will not

answer that A is correct because his argument is correct
(period!). You have to state why he is correct. That is also the
case in the decision. You must support your answer with details.
PEOPLE vs. GONZALES 215 SCRA 592

Now, every decision of every court must state the facts and the law
on which it is based. It must be in every court, no exceptions,
whether SC or an MTC. The Constitutional provision on this
requirement applies to all courts from the highest to the lowest.
HELD: Every judge has his own writing style, some tedious, some
terse, some pedestrian, some elegant, depending upon his training
and outlook. Each is acceptable as long as the factual and legal
bases are clearly and distinctly stated therein.
However, the Judiciary Law allows the appellate court to make a

Memorandum Decision. If you are the appellate court (CA), you
either affirm or reverse the decision of the lower court. If the CA
will reverse the findings of the RTC, definitely the CA has to justify
why the findings of the RTC is wrong.
PEOPLE vs. AMONDINA 220 SCRA 6

HELD: The decision of the trial court is exceedingly long, without
any effort to trim the fat and keep it lean. Judges are not
stenographers transcribing the testimony of the witnesses word for
word. Judges must know how to synthesize, to summarize, to
simplify. Their failure to do so is one of the main reasons for the
delay in the administration of justice. It also explains the despair of
the public over the foot-dragging of many courts and their inability
to get to the point and to get there fast.
But suppose the CA will affirm, so there is nothing wrong with the
judgment of the RTC. Now, in order to shorten the period for
waiting for the decision and in order to hasten it, Section 40 of BP
129 allows the appellate court to simply quote verbatim the
findings and conclusion of the trial court and adopt it as its own.
327

SIN PERJUICIO JUDGMENT

Q: How do you distinguish a judgment from a decision?
Q: What is an SIN PERJUICIO judgment?
A: Actually, the decision is the entire written effort from the first
sentence, This is an action for a sum of money until the end. It
contains everything from the findings of facts, discussion of
evidence.
A: A sin perjuicio is one which contains only the dispositive portion

of the decision and reserves the making of findings of fact and
conclusions of law in a subsequent judgment. (Dir. of Lands vs.
Sanz, 45 Phil. 117) So, there is a WHEREFORE without a ratio
decidendi. It does not state how the court arrived at a certain
decision.
The judgment is usually the last paragraph yung WHEREFORE

the dispositive portion or the decretal portion. Sometimes it is
called the fallo of the case.
Q: Is a SIN PERJUICIO judgment valid?

The fallo is the WHEREFOREpart while the discussions, findings
of facts, conclusion of law to justify the fallo is called the ratio
decidendi the reasoning. (Contreras vs. Felix, 78 Phil. 570)
A: A sin perjuicio judgment is a VOID judgment for it violates the

constitutional provision that no decision shall be rendered by any
court of record without expressing therein clearly and distinctly the
facts and the law on which it is based (Sec. 14, Art. VIIII), and the
provision of the Rules of Court that the judgment shall state
clearly and distinctly the facts and the law on which it is based.
(Rule 36, Section 1)
Q: In case of conflict between judgment and decision, which shall

prevail?
A: The judgment shall prevail in case of such conflict, for it is an
elementary rule of procedure that the resolution of the court in a
given issue, as embodied in the dispositive part of the decision, is
the controlling factor that determines and settles the rights of the
parties and the issues presented therein. (Manalang vs. Rickards,
55 O.G. 5780, July 27, 1959)
CONDITIONAL JUDGMENT
Q: What is a CONDITIONAL judgment?
ASIAN CENTER vs. NLRC - 297 SCRA 727 [Oct 12, 1998]
A: A conditional judgment is one which is subject to the

performance of a condition precedent and is not final until the
condition is performed. (Jaucian vs. Querol, 38 Phil. 707)
FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating

sa WHEREFOR (judgment), As action is dismissed! And there was
no statement in favor of B. A appeals. B contended that the
judgment prevails. Is B correct?
Is one wherein the effectivity of which depends upon the

occurrence or non-occurrence of an event.
EXAMPLE: A sued B. Then the court said: The A is correct
because so and so. However, there is another case now
pending before the SC where the same issue is being raised. In
the meantime, A is correct. But in the event that SC decision
comes out and is not favorable to A, then this decision should
also be automatically changed in favor of B. So, this is a
conditional judgment. Is it a valid judgment?
HELD: The general rule is that where there is a conflict between

the dispositive portion or the fallo 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 as to show that there was a mistake in
the dispositive portion, the body of the decision will prevail.
Q: Is a conditional judgment valid?

TYPES OF JUDGMENTS:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
m)
n)
o)
p)
q)
r)
A: It is NOT valid. In truth, such judgment contains no disposition at

all and is a mere anticipated statement of what the court shall do in
the future when a particular event should happen. For this reason,
as a general rule, judgments of such kind, conditioned upon a
contingency, are held to be NULL and VOID. (Cu Unjieng y Hijos vs.
Mabalacat Sugar Co., 70 Phil. 380)
Sin Perjuicio judgment

Conditional judgment
Incomplete judgement
Nunc pro tunc judgment
Judgment upon a compromise or Judgment upon an amicable
settlement
Judgment upon a confession
Judgment upon the merits
Clarificatory judgment
Judgment by default (Sec. 3 R 9)
Judgment on the Pleadings (R 34)
Summary Judgment (R 35)
Several judgment (Sec. 4 R 36)
Separate judgment (Sec. 5 R 36)
Special Judgment (Sec. 11 R. 39)
Judgment for specificactor (Sec. 10 R 39)
Judgment on Demurrer to Evidence (R 33)
Final Judgment
Amended Judgment and Supplemental Judgment
INCOMPLETE JUDGMENT
Q: What is an INCOMPLETE judgment? What is its effect?
A: An incomplete judgment is one which leaves certain matters to
be settled in a subsequent proceeding. (Ignacio vs. Hilario, 76 Phil.
605) There is a decision but there are still other matters to be
incorporated later in such decision. Parang interlocutory judgment.
EXAMPLE: There is judgment against B for a damage suit,
Wherefore, judgment is hereby rendered ordering defendant
to indemnify the plaintiff, moral and exemplary damages
(period!). It does not state how much. Mamaya na natin
malaman kung magkano. So kulang pa ang decision.
328

My golly! What is there to execute? You do not even know how

much is the award. It does not settle any question that may be the
subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45) The
judgment can never become final, it having left certain matters to
be settled for its completion in a subsequent proceeding. (Ignacio
vs. Hilario, 76 Phil. 605) So, the judgment is again defective.
A: A judgment upon a compromise is a judgment rendered with the

consent of the parties for the purpose of effecting a compromise or
settlement of an action. (31 Am. Jur. 105-108)
It is one rendered by the court on the basis of a compromise
agreement entered into between the parties.
NUNC PRO TUNC JUDGMENT
This is the type of judgment which the law encourages because it is

a judgment with the consent of the parties for the purpose of
effecting a compromise or settlement. Usually mga collection cases
ito tawaran like i-condone ang interests, or half of the amount
na lang, etc. The court will render judgment copying word for word
what the parties say. So the compromise agreement becomes the
judgment and for a as long as the agreement is not contrary to law,
the court will approve it.
Q: (Bar Question) What is a judgment NUNC PRO TUNC and what is

its function?
A: A judgment nunc pro tunc literally means a judgment now for
then.
Its function is to record some act of the court done at a
former time which was then carried into the record. And the power
to make such entries is restricted to placing upon the record
evidence of judicial action which has actually been taken. It may be
used to make the record speak the truth, but not to make it speak
what it did not speak but ought to have spoken. (Lichauco vs. Tan
Pho, 51 Phil. 862)
Q: In a compromise judgment, is the court required to make

findings of fact and conclusions of law? Why?
A: In a compromise judgment, the court is not required to make
findings of fact and conclusions of law. In contemplation of law,
the court is deemed to have adopted the statement of facts and
conclusions of law made and resolved by the parties themselves in
their compromise agreement; and their consent has made it both
unnecessary and improper for the court to make a preliminary
adjudication of the matters thereunder covered. (Palarca vs.
Anzon, L-14780, Nov. 29, 1960)
Example: When a judge renders a decision, he must base his

findings on what happened on the trial or on the evidence
presented. Normally, the judge cites facts as bases for his findings.
Suppose, the judge, in his hurry, made some findings but forgot to
incorporate all those other important matters which can support
his findings. Na-overlook ba! He rendered his decision which was
lacking in something inadvertently omitted. The judge may now
amend his judgment by including the matters missed such
matters that have been admitted on record. Then, the judge now
has an improved decision the judgment now is NUNC PRO TUNC.
What are to be added are things which really happened. The judge
has no power to include something which did not actually happen.
That would be irregular. How could you quote something which
never transpired during the trial.
It is covered by Articles 2028 to 2046 of the New Civil Code

Q: How do you define a compromise?
A: Under Article 2028 of the New Civil Code:
Art. 2028. A compromise is a contract
whereby the parties, by making reciprocal
concessions, avoid a litigation or put an end
to one already commenced. (Civil Code)
So it is an amended judgment where certain matters which are

contained in the records and transpired in court were not
incorporated. So when you made the decision, parang kulang. So in
order to make it clearer, we will incorporate those matters which
should have been incorporated in the amended decision. That is
known as judgment nunc pro tunc. But you can only place there
matters which transpired, not matters which did not transpire.
So the essence of compromise is reciprocal concessions give and

take. It is a mutual concession to avoid litigation or, if there is
already, that which will put an end. There are other definitions
given by the SC although the essence or substance is the same. In
the case of
Q: In what cases is a judgment nunc pro tunc NOT proper?

SMITH BELL AND CO. vs. CA 197 SCRA 201
A: A judgment nunc pro tunc is not proper in the following
instances:
1)
It cannot remedy errors or omission in an imperfect or

improper judgment. (Lichauco vs. Tan Pho, 51 Phil. 862)
2)
It cannot change the judgment in any material respect.

(Henderson vs. Tan, 87 Phil. 466) and
3)
HELD: A compromise is an agreement between two (2) or more

persons who, in order to forestall or put an end to a law suit, adjust
their differences by mutual consent, an adjustment which every
one of them prefers to the hope of gaining more, balanced by the
danger of losing more.
If we go to trial, well, winner take all either the plaintiff wins or
the defendant wins. If you are not sure of your position, then you
might as well get something out of it rather than risk losing
everything.
It cannot correct judicial errors, however flagrant and

glaring they may be. (Henderson vs. Tan, 87 Phil. 466)
JUDGMENT UPON A COMPROMISE or
JUDGMENT UPON AN AMICABLE SETTLEMENT
EXAMPLE: You sue me for P1 million. Then I say, I would like to

offer a settlement. You would say, How much do you offer?
Well, my complaint is 1 million, so you pay me P1 million. That is
not compromise, that is surrender. Kaya nga umaareglo ako para
makatawad. And if you will not receive anything less than a
million, you are not asking for a compromise, you are demanding
Q: What is a JUDGMENT UPON A COMPROMISE?
329

total surrender. If that is so then, let us go to court and find out if

you will get your P1 million and let us find out how many years
from now you can get your money.
2)
It cannot be annulled unless it is vitiated with error,

deceit, violence or forgery of documents. (Morales vs.
Fontanos, 64 Phil. 19; Article 2038, Civil Code)
Kaya in a compromise agreement, there are no winners and there

are no losers.
3)
It constitutes res adjudicata. (Art. 2037, Civil Code;

Sabino vs. Cuba, L-18328, Dec. 17, 1966) Meaning, the
same subject matter or cause of action can no longer be
reopened in the future in another litigation.
REPUBLIC vs. SANDIGAN 226 SCRA 314

FACTS: This is a case involving a compromise between the
government and Benedicto, a crony of President Marcos. He
entered into a compromise with the PCGG and the Supreme Court
approved it.
Q: Suppose you enter into a compromise agreement and there is a

judgment. You want to escape from the compromise judgment on
the ground that your consent was vitiated by mistake, error, deceit,
violence. How do you question it? What is your remedy?
HELD: Any compromise has its very essence reciprocal

concessions, one must give and one must take. If only one takes
all, then one must first win. But in a compromise, all win by taking
some and giving some.
A: There are so many conflicting answers here. Some say you file a
motion to set aside the compromise judgment because your
consent was vitiated. And if the motion is denied, you appeal from
the order denying your motion to set aside. But definitely, you
cannot appeal from the compromise judgment because it is not
appealable. You appeal from the order denying your motion to set
aside the compromise judgment.
Lets go back to the law on Obligations and Contracts. There are

four (4) types of defective contracts:
a)
b)
c)
d)
void;
voidable;
rescissible; and
unenforceable.
However, under the new rules, you cannot anymore appeal 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 (Section 1, Rule 41)
Under the Civil Code, if one party enters into a contract where he
lacks the requisite authority, the contract is unenforceable but it is
a valid agreement.
So 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 is not appealable. Therefore,
whatever the answers before are not anymore true now. So what is
the REMEDY now?
Q: What is the effect of a compromise agreement entered into by a

lawyer, without any special authority from his client? Is it a null and
void agreement?
It would seem that the correct remedy based on the new rules in
relation to some new cases, among which was the case of:
A: A lawyer cannot, without special authority, compromise his

clients litigation. A judgment upon a compromise entered by the
court, not subscribed by the party sought to be bound by the
compromise agreement, and in the absence of a special authority
to the lawyer to bind his client in the said agreement, is
UNENFORCEABLE. (Dungo vs. Lopena, L-18377, Dec. 29, 1962)
DOMINGO vs. CA 255 SCRA 189 [1996]

HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule
47)
Q: Suppose in the above case, the client learned about what his
lawyer did and he did not reject the agreement, as a matter of fact
he complied with it, what is now the effect on such agreement?
A compromise may however be disturbed and set aside for vices

of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or falsity in
the execution of the compromise embodied in a judgment, an
action to annul it should be brought before the Court of Appeals, in
accordance with Section 9(2) of Batas Pambansa Bilang 129, which
gives that court (CA) exclusive original jurisdiction over actions for
annulment of judgments of regional trial courts.
A: The agreement is now perfectly VALID and ENFORCEABLE

because the party himself did not question his lawyers authority.
When it appears that the client, on becoming aware of the
compromise and the judgment, failed to repudiate promptly the
action of his lawyer, he will not afterwards be heard to contest it.
(Banco Espaol-Filipino vs. Palanca, 37 Phil. 921)
The parties may submit compromise agreement at any stage of the

case, even if judgment has already become final and executory, and
even without approval of the court.
Effects of judgment based on a compromise

Q: What are the legal effects of a judgment based upon a
compromise agreement?
Advantage of Approval of the court
A: A judgment upon a compromise agreement produces the

following legal effects:
1)
The court could render a judgment based upon a compromise

and in case of breach of any of the conditions, the party may
ask the court for execution of judgment under R 39.
The compromise judgment is not appealable and it is

immediately executory. (Reyes vs. Ugarte, 75 Phil. 505;
Serrano vs. Miave, L-14687, March 31, 1965)
330

JUDGMENT UPON A CONFESSION (COGNOVIT JUDGMENT)
Warrant of Attorney to Confess Judgment.

standard clause in American contracts.
That is a
Q: What is a judgment upon a confession?

EXAMPLE: I am a bank. You borrow money from me and you
sign a promissory note which contains stipulations normally
to the advantage and in favor of the bank. They usually
insert the American clause Warrant of Attorney to Confess
Judgment that in the event that the bank will sue you on
this promissory note, you are entering into a confession
judgment immediately. Meaning, I am not going to defend
myself and I am immediately confessing judgment to the
court. And who will confess judgment to the court? The
debtor will say I hereby appoint the bank as my
representative to confess judgment to the court in my
behalf. Parang Special Power of Attorney ba. The bank will
go to the court and say, Under this paragraph, I represent
the defendant-debtor because he appointed me as his
attorney-in-fact. And in behalf of the defendant, I am
confessing.
A: A judgment upon a confession is a one entered against a person

upon his admission or confession of liability without the formality,
time and expense involved in an ordinary proceeding. (Natividad
vs. Natividad, 51 Phil. 613)
It is one rendered by the court when a party expressly agrees to the
other party's claim or acknowledges the validity of the claim
against him.
Two kinds of judgment by Confession:
1)
Judgment by Cognovit Actionem

A judgment upon a confession is also known as cognovit
judgment.
The defendant after service instead of entering a plea
acknowledges and confesses that the plaintiff's cause of
action is just and rightful.
The Supreme Court ruled that such stipulation is null and void in
the old case of:
NATIONAL BANK vs. MANILA OIL 43 Phil 444
EXAMPLE: You file a case against me. Without filing an

answer, I simply appeared in court and tell the court that I
am not contesting the claim. I am admitting the complaint
to be true and I am willing to have judgment rendered
against me. Or, I can also file my answer kunwari lang ba,
and then in court I will admit my liability. That would be the
basis of the judgment upon a confession.
HELD: Such type of clause is null and void for being contrary to
public policy because the defendant waives his right in advance to
defend himself. That is unfair because even before you are sued,
you have already waived your right to defend yourself.
But the judgment of confession is still allowed but one has to do it
himself, and must not be done in advance. Meaning, it must not be
done like the above acts of American lawyers as such is against
public policy. One must be first be given a chance for defense
which right be later on waived through voluntary confession.
As distinguished from judgment on the pleadings (Rule 34), in

judgment on the pleadings you have to go through the process of
filing an answer but actually your answer puts up no defense. In
judgment upon a confession, I may not even file an answer. Hindi
talaga ako maglaban. Upon receiving the complaint, I just say that I
am admitting liability. So there is no need of a default order. In
American Law, they call it nullo contendere, meaning no contest. Sa
criminal case pa, I am pleading guilty.
Q: Distinguish a judgment upon a COMPROMISE from a judgment

upon a CONFESSION.
Judgment upon a confession, Judgment upon the pleadings, Default

judgment Magkahawig sila. Only they vary a little bit. In default
judgment, the defendant failed to file an answer. So, he is declared
in default. In judgment upon the pleadings, defendant filed an
answer but the answer contains no defense. In judgment upon a
confession, he will not file an answer but will tell the court that he
is admitting liability. So, lahat will end up on the same thing: There
will be a judgment rendered against the defendant.
2)
1)
In a judgment upon a COMPROMISE, the liability of

the defendant is to be determined in accordance with
the terms of the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant
confesses the action and consents to the judgment that
the court may render in accordance with the
compromise and the prayer therein (31 Am. Jur. 108);
and
Judgment by confession relicta verification

2)
After pleading and before trial, the defendant both
confessed the plaintiff's cause of action and withdrew or
abandoned his plea or other allegations, whereupon
judgment is entered against him without proceeding to trial.
In a judgment upon a COMPROMISE, there is give

and take; the parties haggle, bargain and agree on the
terms of the judgment; there is mutual or reciprocal
concessions; whereas
A judgment upon a CONFESSION is unilateral. It comes
from the defendant who admits his liability and accepts
that judgment be rendered against him.
Now, during the commonwealth era, there were many

American lawyers who practiced law in the Philippines.
Many judges were Americans, even Justices of the Supreme
Court many of them were Americans. American lawyers
brought to the Philippines types of agreements in American
contracts. There was one particular agreement known as
3)
331
In a judgment upon a compromise, the provisions and

terms are settled and agreed upon by the parties to the
action, and which are entered in the record by the
consent of the court while a judgment by confession is

an affirmative and voluntary act of the defendant

himself. The court exercises a certain amount of
supervision over the entry of judgment.
Exceptions:
1)
to make correctios of clerical error, not substantial

amendments, as by an amendment nunc pro tunc;
2)
to clarify an ambiguity which is borne out by and

justifiable in the context of the decision; or
3)
in judgments for support, which can always be amended

from time to time.
Remedy against judgment by consent, confession or compromise

File a motion to set it aside then if denied file a petition under
65 which is appropriate (Sec. 1 R 41)
JUDGMENT UPON THE MERITS
It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
Rule: The validity of a judgmentrot order of a court cannot be

collaterally attacked.
CLARIFICATORY JUDGMENT
Except:
It is rendered to clarify an ambiguous judgment or one difficult to

comply with.
1)
2)
Where the judgment is difficult to execute because of ambiguity in

its terms, the remedy is to file a motion for clarificatory judgment
and not to assail the judgment as void. (Riano p. 405)
Sec. 2. Entry of judgments and final orders. - If

no appeal or motion for new trial or
reconsideration is filed within the time
provided in these Rules, the judgment or final
order shall forthwith be entered by the clerk
in the book of entries of judgments. The date
of finality of the judgment or final order shall
be deemed to be the date of its entry. The
record shall contain the dispositive part of
the judgment or final order and shall be
signed by the clerk, with a certificate that
such judgment or final order has become
final and executory. (2a, 10, R51)
Promulgation of judgment
This refers to the process by which a decision is published, officially
announced, made known to the public or delivered to the clerk of
court for filing, coupled with notice to the parties or their counsel.
Memorandum decision is a decision of the appellate court which
adopts the findings and conclusins of the trial court.
Promulgation of judgment:
1)
2)
The court renders a decision

After receipt of notice, the losing party has the following
options:
a)
If you lose a case, what are your options? I can either appeal
within the time provided by the Rules. Or, within the same period, I
will file a motion for a new trial or a motion for reconsideration. In
any case, the finality of the judgment will be stopped.
Accept the decision without further contest in

which case the judgment becomes final fater
period to appeal has lapsed; or
Contest the judgment in which case he can:
b)
1.
2.
Q: Suppose the prescribed period has lapsed, there is no appeal, no

motion for new trial or reconsideration, what happens to the
judgment?
File an appeal within 15/30 days from notice

of judgment; or
file a motion for reconsideration or a motion
for new trial within the period to appeal
reckoned from notice of judgment.
A: The judgment now becomes final and executory.

According to Section 2, once the judgment has become final, it shall
be entered by the clerk of court in the Book of Entries of
Judgments. If you go to the office of the RTC, you will find an
official book which contains a chronological arrangement of cases,
based on the date of filing. Malaking libro yan.
If he filed a motion for recon or motion for new trial, two

possibilities can happen:
1)
If granted, the court can modify the decision or allow

new trial;
2)
If denied, the losing party may appeal within a fresh

period of 15 days from notice of denial (Neypes vs. CA)
for lack of jurisdiction; or

irregularity of its entry apparent from the face of the
record.
Now, the second sentence is new and its effects are also significant,
the date of the finality of judgment or final order shall be
deemed to be the date of its entry. The rule is, when does a
judgment become final? After the lapse of the period to appeal
and no appeal is filed.
EXAMPLE: Today, March 4, the lawyer for the defendant received a
copy of the judgment. The last day to appeal is March 19. Suppose
there is no appeal, then March 20 is the date of finality. On March
20 or immediately thereafter, the clerk of court should know the
judgment became final on March 20. Suppose the clerk of court
placed it in the book on March 30. So, the date of finality is March
20 but the date of entry is March 30.
The power to amend a judgment is inherent to the court before

judgment becomes final and executory.
General rule: After judgment has become final and executory the
court cannot amend the same.
332

Sometimes the clerk of court forgets to make the date of entry.

That is why under the old rules, the date of finality of judgment
does not coincide with the date of entry of judgment because the
clerk of court may do that thing months later. This creates a lot of
trouble. So to cure the discrepancy, the second sentence is now
inserted by the new law: the date of finality of judgment shall be
deemed to be the date of its entry.
A. YES. Theres a judgment in favor of the plaintiff against the

defendant and the trial still continues with respect to other
defendants.
That would involve more than one decision.
Judgment in favor of one defendant is rendered already but the
trial will continue with respect to other defendants is possible
under Section 4.
Meaning, the judgment became final on March 20 although the

clerk of court noted it on March 30. Under the new rules, the date
of entry (March 30) retroacts to March 20. That is the significance
of the second sentence, they will automatically coincide. Kahit ienter pa yan next month, everything will retroact to the date of
finality. It is simplier now.
EXAMPLE: There was a case where the government filed a case for
expropriation against several landowners. The lands are adjoining
each other and the government would like to expropriate all these
properties. The government had to file on complaint against
several landowners. One landowner asked that his case be tried
ahead of the others. He was allowed under Rule 31 on Separate
Trial. His case was tried ahead. After trial, the court rendered
judgment against him. His land was ordered expropriated. Now,
what happened to the other defendants? The Supreme Court said
let the case continue against the other landowners. But there
would be a judgment in so far as one defendant is concerned.
(Municipality of Bian vs. Garcia, 108 SCRA 576)
Note: Entry of judgment or final order assumes importance in

reckoning somereglementary periods such as the 5-year period for
execution by a motion (Sec. 6 R 39) or the 6-moth period for a
petition for relief (Sec. 3 R 38). Regalado, Remedial Law,
Compendium p. 413)
Sec. 3. Judgment for or against one or more of
several parties. - Judgment may be given for
or against one or more of several plaintiffs,
and for or against one or more of several
defendants. When justice so demands, the
court may require the parties on each side to
file adversary pleadings as between
themselves and determine their ultimate
rights and obligations. (3)
Sec. 5. Separate judgments. - When more

than one claim for relief is presented in an
action, the court, at any stage, upon a
determination of the issues material to a
particular claim and all counterclaims arising
out of the transaction or occurrence which is
the subject matter of the claim, may render a
separate judgment disposing of such claim.
The judgment shall terminate the action with
respect to the claim so disposed of and the
action shall proceed as to the remaining
claims. In case a separate judgment is
rendered, the court by order may stay its
enforcement until the rendition of a
subsequent judgment or judgments and may
prescribe such conditions as may be
necessary to secure the benefit thereof to the
party in whose favor the judgment is
rendered. (5a)
Q: Suppose there are 2 plaintiffs A and B, can the court render

judgment in favor of plaintiff A and against plaintiff B? Or, is it
possible that in one case, one defendant will win and the other
defendant will lose?
A: YES, especially when the causes of action or defenses are not
the same. One may invoke a defense that is only applicable to him
but not applicable to others.
Sec. 4. Several judgments. - In an action
against several defendants, the court may,
when a several judgment is proper, render
judgment against one or more of them,
leaving the action to proceed against the
others. (4)
Separate judgment is one rendered by a court disposing of a claim

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

defendants and not against all of them leaving the action to
proceed against the others.
It is proper where more than one claim for relief is presented in an

action and a determination as to the issues material to the claim
has been made. The action shall proceed as to the remaining
claims.
Several judgment is proper where the liability of each party is

clearly separable and distinct from his co-parties such that the
claims against each of them could have been the subject of
separate suits, and the judgment for or against one of them will not
necessarily affect the other. A several judgment is not proper in an
action against solidary debtors. (Fernandez v. Sta. Maria GR No.
160730 Dec. 10, 2004)
Amended or Clarified judgment and supplemental decision
Same concept. When there are 2 or more defendants, normally the

court renders judgment sabay-sabay. That is possible.
Q. Is it possible that more than one judgment will arise in a civil
action?
333
1.)
The first is an entirely new decision and supersedes the

original judgment while the latter stands side by side
with the original;
2.)
In the first, the court makes a thorough study of the

original judgment and renders the amended and clarified
judgment only after considering all the factual and legal
issues while the latter serves to bolster or add to the
original judgment.

Q: Can there be judgments at periods or stages of proceedings?

A: YES. There can be judgment insofar as one cause of action and
the proceedings will continue as to other causes of action.
Let us go back to Rule 30 on Order of Trial. You will notice that
there is order of trial when there are several claims in one action.
EXAMPLE: Plaintiff files a complaint against several defendants.
One defendant files a cross-claim against another defendant. Two
defendants file permissive counterclaims against the plaintiff. One
defendant will file a third-party complaint against a third-party
defendant. The court renders judgment. It may render judgment
as far as complaint is concerned, then the decision for the crossclaim, then for the counterclaim.
The normal procedure is you try the case, tapusin mo lahat, then
you render one judgment disposing of the complaint, counterclaim,
cross-claim and third-party complaint. Yet, separate judgments is
also permissive under Section 5. If there are separate trials for all
these (counterclaim, cross-claim, etc), it is also possible that there
would be separate trials.
Distinctions:
Section 3 refers to an action by several parties
Section 4 refers to an action against several defendants
Section 5 refers to several claims for relief in an action
Sec. 6.
Judgment against entity without
juridical personality. - When judgment is
rendered against two or more persons sued
as an entity without juridical personality, the
judgment shall set out their individual or
proper names, if known. (6a)
Does that sound familiar? Two or more persons sued as an entity
without juridical personality. Lets go back to Rule 3 Section 15 and
Rule 14 Section 8.
PROBLEM: Three people are members of an entity without juridical
personality. They transact business with Mr. Alama. Mr. Alama
has no idea who are really the members of the said entity. He
wanted to sue the members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 Mr. Alama will file a case against the
defendants by using the name of the entity they are using.
Q2: How should summons served to these defendants?
A: Rule 14, Section 8 Summons may be served on anyone of them
or to the person in charge of the place of business.
Q3: How should judgment be rendered against them?
A: Rule 36, Section 6 when judgment is rendered, the judgment
shall set out their individual and proper names.
334

Rule 37
We have not yet discussed the law on appeal but the general rule is
just like in criminal cases. If you lose, you have 15 days to file an
appeal. If there is no appeal within 15 days, the judgment will
become final and executory.
NEW TRIAL OR RECONSIDERATION

The counterpart of Rule 37 in criminal procedure is Rule 121. In
criminal procedure, there is also the remedy of new trial and
reconsideration.
Q: What is the effect when judgment becomes final and executory?

A: Under Rule 36, the court loses jurisdiction over the case. The
decision cannot be changed anymore. But as long as judgment is
not yet final, the court can change the decision.
Section 1. Grounds of and period for filing

motion for new trial or reconsideration. Within
the period for taking an appeal, the aggrieved
party may move the trial court to set aside
the judgment or final order and grant a new
trial for one or more of the following causes
materially affecting the substantial rights of
said party:
Q: What is the effect of filing a motion for new trial or

reconsideration on the period to appeal?
A: The period to appeal is suspended. Period to appeal is
suspended except if your motion for new trial or reconsideration is
pro-forma under Sections 2 and 5.
(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
NEW TRIAL
The motion is filed within the period to appeal (Sec. 1). No motion
for extension of time to file a motion for new trial shall be allowed
(Sec. 2, R 40; Sec. 3, R 41).
(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.
Within the same period, the aggrieved party
may also move for reconsideration upon the
grounds that the damages awarded are
excessive, that the evidence is insufficient to
justify the decision or final order, or that the
decision or final order is contrary to law.(1a)
The period to appeal is within 15 days after notice to the appellant

of the judgment or final order appealed from (Sec. 2 R 40; Sec. 3, R
41; Sec. 2 R 45). Where a record on appeal is required, the
appellant shall file a notice of appeal and a record on appeal within
30 days from notice of the judgment or final order (Sec. 3 R 41). A
record on appeal shall be required only (a) in special proceedings,
and (b) other cases of multiple or separate appeals (Sec. 3 R 40).
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, A.M. No. 08-8-7-SC).
Q: When may an aggrieved party file a motion for new trial or a

motion for reconsideration?
Q: What are the grounds for a motion for new trial in civil cases?
A: Within the period for taking an appeal. Meaning, before the
judgment becomes final and executory.
A: Under Section 1, there are two (2) GROUNDS:
The remedies against a judgment may refer to those remedies

before a judgment becomes final and executor and those remedies
after the same becomes executor.
1)
1)
2)
FIRST GROUND: Fraud, Accident, Mistake, Excusable

negligence (FAME)
Before a judgment becomes final and executor, the

aggrieved or losing party may avail of the following
remedies:
a.)
b.)
c.)
Let us relate this to Rule 9, Section 3 [b] on Default. The ground to

lift or set aside the order of default is also FAME that he failed to
answer because of FAME. So, there is a connection between Rule 9
and the first ground of a motion for new trial. But this is not
applicable only to a defaulted defendant.
Motion for Reconsideration;

Motion for New Trial; and
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).
2)
Fraud, Accident, Mistake, Excusable negligence (FAME);

Newly Discovered Evidence (NDE)
Q: How do you determine when to use Rule 9 or Rule 37 when one

is declared in default?
A: Use Rule 9, Section 3 [b] after notice of the order of default but
before judgment;
After the judgment becomes executory, the losing party

may avail of the following:
Use Rule 37 if there is already a judgment but not yet final and
executory. Rule 37 is the remedy in case the defendant who is
declared in default failed to avail of Rule 9, Section 3 [b].
a.) Petition for Relief from Judgment;

b.) Action to Annul a Judgment;
c.) Certiorari; and
d.) Collateral Attack of Judgment.
335

But Rule 37 on motion for new trial on the ground of FAME is

broader. It applies to plaintiff or defendant whether in default or
not because a defendant can still lose the case through FAME
although he is not in default. Or, for example: The plaintiff, because
of his failure to appear in the case, the court dismissed the case.
But the reason why the plaintiff failed to appear is because of
FAME. So the remedy for plaintiff is to move to set aside the
dismissal and have the case continued by filing a motion for new
trial on the ground of FAME.
thereof, he was prevented from presenting his case properly.

(Gisburne Supply Co. vs. Quiogue, 34 Phil. 913; Almeda vs. Cruz,
84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-30694, Oct. 31,
1969)
So, intrinsic fraud is not a ground for a new trial.
EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the
lawyer of the defendant. The case will be tried tomorrow. I called
you up and asked you to postpone the trial, I will tell the court
that I talked to you and you agreed that the trial will be
postponed. The following day, I appeared in court. When the case
is called, I said that Im ready. Court: Saan ang defendant? I said,
Wala! Awan! I then moved to continue the trial.
But definitely, Rule 37 also applies to a defendant declared in

default and that is the connection between Rule 37 and Rule 9.
FRAUD (Extrinsic)
What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: nautis) Under the law, there are two (2) TYPES of Fraud: EXTRINSIC
FRAUD and INTRINSIC FRAUD
So, naisahan kita. I maneuvered a scheme in such a way that you

will not appear in court. You lost your opportunity to present your
side. That is EXTRINSIC FRAUD. Your remedy now is to file a
motion for new trial on the ground that you have been a victim of
EXTRINSIC FRAUD by the plaintiffs lawyer.
Fraud is regarded as extrinsic or collateral in character 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 vs. CA). 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
vs. Nite).
EXAMPLE: There is a case between you and me. During the trial, I
presented witnesses to prove my cause of action. All my witnesses
were lying they testified falsely. I presented falsified documents
to prove my case. And I won the case because of those perjured
testimonies and falsified documents. You file a motion for new
trial alleging FRAUD that the testimonies and documents were
falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC
because you were not prevented from going to court. So, your
remedy is to expose my perjured and falsified evidence. You can
present rebuttal evidence. It is your obligation to prove that my
witnesses are lying and my documents are false. Definitely, you
cannot ask a motion for a new trial.
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 vs. CA 465 SCRA 495)
The use of forged instruments, or perjured testimonies during trial
is not an extrinsic fraud. Such evidence does not preclude a partys
participation in the trial (Bobis vs. CA 348 SCRA 23; Strait Times vs.
CA GR 126673 August 28, 1998). Offering perjured testimony or
offering manufactured evidence is intrinsic and not extrinsic fraud.
Intrinsic fraud is not sufficient to annul a judgment (Conde vs. IAC
GR L-70443, Sept, 15, 1986).
ACCIDENT
What is ACCIDENT? It is something unforeseen, something
unexpected or unanticipated. When is accident a sufficient ground
for new trial?
EXAMPLE: A party failed to appear in court because he got sick at
the last minute. Or, in the middle of the trial, the lawyer of the
party becomes sick. With that, the complaint was dismissed or
there was a judgment against you. You can move for new trial on
the ground of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil.
983)
INTRINSIC FRAUD is that fraud which was an issue in the litigation

such as perjury, false testimony, concealment of evidentiary facts,
but did not prevent you from presenting your case. That is not a
ground for annulment of judgment. So take note of that principle.
GARCIA vs. CA 202 SCRA 228 [1991]
EXAMPLE: The defendant was declared in default because he did

not file an answer but actually he filed an answer through mail, but
somehow the post office did not deliver it to the court. That is an
accident. With that, I can move for new trial or lift the order of
default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)
HELD: EXTRINSIC FRAUD is that type of fraud which has prevented

a party from having a trial or from presenting his case in court.
INTRINSIC FRAUD is based on the acts of a party in a litigation
during the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case, but
did prevent the fair and just determination of the case.
EXAMPLE: The trial was this morning. But I received only the notice
of trial on March 9, 1998 stating that the trial is on March 5. So the
notice of hearing was received days after the scheduled date. That
is an accident which is a ground for new trial. (Soloria vs. Dela Cruz,
L-20738, Jan. 31, 1966)
Q: When is fraud a sufficient ground for new trial?

A: FRAUD, to be a ground for new trial, must be EXTRINSIC where
the aggrieved party was misled by the adverse party, and by reason
336

MISTAKE
him from the effects of his failure to present countervailing

evidence. The Court does not consider as gross negligence the
counsels resort to dilatory schemes, such as (1) the filing of at least
three motions to extend the filing of petitioners answer; (2) his
nonappearance during the scheduled pre-trials; and (3) the failure
to file petitioners pre-trial brief, even after the filing of several
motions to extend the date of filing (Uy vs. First Metro).
What is MISTAKE? Mistake(n) is nagkamali I was wrong. Sa bisaya

pa, nasayop.
EXAMPLE: Defendant received summons and complaint. The
defendant, instead of seeking assistance of a lawyer, went to the
plaintiff and asked for settlement. They kept on talking about the
settlement but in the meantime, the period to file answer is also
running. Fifteen days had passed by they buy did not settle yet.
Plaintiff moved to declare defendant in default. The court issued
judgment on default. Defendant said, Layman man ako. Anong
malay ko diyan sa default-default na yan. The lawyer said, Sana
answer muna before you settle with the plaintiff. So the lawyer
filed a motion for new trial on the ground of MISTAKE. The court
granted it. (Salazar vs. Salazar, 8 Phil. 183)
EXCUSABLE NEGLIGENCE Obviously, inexcusable negligence is not

a ground for new trial. But sometimes, it is difficult to determine
whether the negligence is excusable or inexcusable. That is also
very difficult because there is negligence whether you like it or not.
When is negligence excusable and when is it inexcusable? Our only
guide here is decided cases because there are many cases where
the SC said that, it is excusable so we will grant a new trial. Or
sometimes naman, wala, that is not excusable so no new trial. So,
we can go on the pattern and find out what type of negligence
warranted a new trial and what type does not warrant a new trial.
GENERAL RULE: A client is bound by the mistakes of his lawyer and

he cannot file a motion for new trial on the ground of mistake of his
lawyer. In the case of
INEXCUSABLE NEGLIGENCE; Examples:

BELLO vs. LABONG L-10788, April 30, 1959
EXAMPLE1: If a defendant lost a case because his lawyer failed to
file an answer. And the excuse of the lawyer was, I forgot about
the deadline. Nalimutan ko. I did not keep tract of the deadline to
file an answer. And the SC said, No dice. That is not excusable on
the part of the lawyer.
HELD: The mistake of an attorney is not generally a ground for

new trial. The mistake or lack of foresight or preparation on the
part of the attorney cannot be admitted as reason for new trial in
civil cases, otherwise there would never be an end to a suit so long
as a new counsel could be employed who could allege and show
that the prior counsel had not been sufficiently diligent, or
experienced, or learned.
EXAMPLE #2: Your case was dismissed because you failed to

appear in court. Here comes now your lawyer asking for new trial
on the ground of excusable negligence, I failed to appear in court
because I again forgot about that schedule or because I failed to
wake-up because the night before, I and my friends went to a
(Wigmore) party and I went home drunk. Do you think the SC will
honor that? Is that excusable? Of course not!
What the SC is trying to say is this: Suppose we will grant a new

trial for the party on the ground of mistake of his first lawyer, and
after the new trial, the party still lost. So such party will now hire a
third lawyer who will say, Do you know why you lost? That is
because of the mistake of your second lawyer so we will file a
motion for new trial. So the third lawyer will allege mistake of the
second lawyer and then we will grant again a new trial and then he
loses again. Then he gets a fourth lawyer and the fourth lawyer will
allege the ground of mistake of the third lawyer.
EXAMPLE #3: In many cases, the reason is, I failed to appear in

court because my secretary in my law office failed to inform me
about that notice. Hindi niya nalagay yung notice that I have to
appear in court today. SC said, You are bound by the mistake of
your secretary and the client is also bound by that mistake of the
lawyer. In the first place, why did you hire that kind of secretary?
So, there will never be an end to a case. So the general rule to

remember is, a client is bound by the mistakes of his lawyer and he
cannot file a motion for new trial on the ground of mistake of his
lawyer. So that is not the type of mistake contemplated by Rule 37.
EXAMPLE #4: In some cases, Well, you see your honor, I failed to
appear in court because my secretary did not calendar it. O, bakit
niya hindi inilagay? Well, shes just a newly hired secretary, she
does not know yet the importance of these things. First time niya.
The SC said, Hung hang! Pasensiya ka! Why did you not orient her
before hiring her.
The only EXCEPTION is based on equity decision like the case of

PEOPLE vs. MANZANILLA 43 Phil. 167
HELD: A new trial is sometimes granted where the
INCOMPETENCY or NEGLIGENCE of the partys counsel in the
conduct of the case IS SO GREAT that partys rights are prejudiced
and he is prevented from presenting his cause of action or
defense.
So all these things hindi lumusot. All these things failed to convince
the SC that the negligence of the party of the lawyer if excusable.
EXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: The answer has to be filed the following day. The
lawyer told the secretary, Im leaving tonight. Ill come back one
week later. You better file tomorrow the answer because tomorrow
is the deadline. Then he left but the secretary failed to file it
because she also got sick. Ayan. Nagkapatong-patong na ang
malas. Excusable iyan.
EXCUSABLE NEGLIGENCE
Gross negligence of counsel not a ground for new trial
Petitioners argument that his counsels 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 counsels negligence as gross as to liberate
EXAMPLE #2: I failed to appear in court because I had to come

from Manila and the plane was delayed or the flight was cancelled.
337

But if the flight proceeded on time I would have been in Davao City
by 7:00 A.M. and I would have been in court at 8:30 A.M.
Sometimes that happens eh where the flight is cancelled or
delayed. Ano ngayon yan? Sabihin, you should have taken the
flight the night before para sigurado. Eh, the night before fully
booked na! Anong magagawa ko? Ayan.
A: NDE is evidence which was discovered after trial, or cannot be

discovered during trial given the exercise of reasonable diligence,
and if admitted, such evidence would probably alter the result of
the case. There is a fighting chance ba! So, you could not have
discovered the evidence even with exercise of due diligence.
This is also one of the grounds for new trial in criminal cases. You
lost a case maybe because you do not have enough evidence to
prove your cause of action. Kulang ba! Kulang ka ng ebidensiya
kaya natalo ka. Then after you lost the case, you came across an
important evidence, maybe a witness or a document and you
learned about it for the first time. Ang sayang no? If I was able to
present this evidence baka panalo ako.
So in other words, these things, you could also consider it as what?

Parang accident din no? Magkahawig eh! In other words you
should use your common sense. Whether the negligence is
forgivable or not.
And to borrow the language of the SC, The standard of care
required of a party is that which an ordinarily prudent man bestows
on his important business. (Fernandez vs. Tan Tiong Tick, L-15877,
April 28, 1961)
EXAMPLE: You are a defendant being sued because of nonpayment of an account. Ang depensa mo, bayad na. Pero saan ang
resibo? Basta binayaran ko siya, ok naman. Sabi nga niya wala na
raw akong utang. Now, so its your word against his word and the
court did not believe you. Then eto naman ang sabi ni X, Natalo
ka? Bayad naman yan ba. Kung ganun, bakit alam mo? X:
Nandoon man ako ba. I was there watching when you paid him.
Meaning, kung nagtestify ka (X) noon, baka daug ako because my
defense would have been corroborated by you. Yaaann!
So, for EXAMPLE: You are a businessman and you have an

appointment with somebody who will give you a deal of P50
million. And you are scheduled to see him on this date and on this
time. Can you afford to forget that transaction? I think there is
something wrong with you if you forgot it. You do not know what is
important and what is not important. (Ang importante is yung
mahalaga! Di ba?)
Q: What are the REQUISITES for NDE (Berry Rule)?

There are things which you forget and somehow in forgetting it you
cannot be blamed because its not really important. But there are
things which you cannot afford to forget.
A: The following:
1)
2)
That the evidence was discovered after trial;

That it could not have been discovered during trial even
with exercise of reasonable diligence; and
The evidence is of such weight that if admitted, such
evidence would probably alter the result; and
it must be material and not merely collateral, cumulative
or corroborative.
EXAMPLE: Your classmate tells you, This coming Saturday you go

to the house. Why? Is there a (Wigmore) party there? Wala
man. Im just inviting you to come ha? And by Monday, I was
waiting for you, you did not show up! Tama no? Sorry nalimutan
ko. Now, is forgetting your appointment with your classmate two
days before forgivable or not? I think forgivable iyan. Anyway,
istorya-istorya man lang. Para bang, O, sige, di sa susunod na
Sabado na lang. Meaning, madaling ma-erase sa mind mo yang
mga ganyang klaseng appointment ba!
These standards, also known as the "Berry" rule, trace their origin
to the 1851 case of Berry vs. State of Georgia.
EXAMPLE: But suppose on Saturday morning you are supposed to

go to church for your wedding, hindi ka nakasipot. And then you
tell your bride or the groom, Pasensiya ka na ha? Kasal pala natin,
nakalimutan ko eh. (Sana t-in-ext mo ako. Wala kang load no?
hahaha!) I think he or she will kill you for that kind of reasoning.
Newly discovered evidence need not be newly created evidence. It

may and does commonly refer to evidence already in existence
prior or during trial but which could not have been secured and
presented during the trial despite reasonable diligence on the part
of the litigant. (Tumang vs. CA GR No. 82346-47, April 17, 1989).
3)
4)
EXAMPLE: If a lawyer says, I forgot that this is the day I should file
an answer for my client. Or, I forgot to appear in court on the day
of his trial. Is the courts schedule or the schedule of a lawyer
something important for him or not? I think you know the answer
no?
THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;

Newly discovered evidence vs. Forgotten evidence
In the former, the evidence was not available to a party during the
trial, and was discovered only after the trial while in forgotten
evidence, the evidence was already available to a party and was
not able to present it through inadvertence or negligence of
counsel. The latter is not a ground for new trial.
Ayan! Kaya iyan ang guide. That is the meaning of excusable

negligence.
NEWLY DISCOVERED EVIDENCE
EXAMPLE: There was a case where a party, through his lawyer filed
a motion for new trial based on this document. Bakit hindi mo preni-sent sa trial? I misplaced it in my drawer. Nalimutan ko na
meron pala akong resibo. So, lets have a new trial because I will
now introduce a ground for new trial. Obviously, it was discovered
after trial. It was in your possession for so long. And according to
the SC, that is not a newly discovered evidence. (That is
katangahan!) That is forgotten evidence which is not a ground for
new trial.
Section 1(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.
Q: What is Newly Discovered Evidence (NDE)?
338

THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL

EVEN WITH EXERCISE OF REASONABLE DILIGENCE
MOTION FOR RECONSIDERATION

Q: What is the ground for a motion for reconsideration?
Meaning, even if you try your best to look for it, you would not
have found it. Now na natalo ka, you suddenly found it.
A: Third paragraph of Section 1:
Now, because there are clients who are lazy eh. So, meron ka bang
dokumento? Wala eh. You see, marami akong file diyan pero
tingin ko wala eh. Wala gyud? Wala. So, talo. Walang
ebidensiya eh! After a while pag-halungkat, Atty., naa man diay.
My golly! Nganong karon man lang. I gave you several months to
look for that. Youre so lazy. Now, that you lost, you only find it for
an hour. In this case, you did not comply with the second
requisites that it could not have been discovered before trial even
with the exercise of reasonable diligence.
Within the same period, the aggrieved party

may also move for reconsideration upon the
grounds that the damages awarded are
excessive, that the evidence is insufficient to
justify the decision or final order, or that the
decision or final order is contrary to law.(1a)
Q: When do you file a motion for reconsideration?
A: Within the same period for filing a motion for new trial.
Meaning, within the period for taking an appeal.
THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER

THE RESULT
Q: What are the grounds for a motion for reconsideration?

Meaning, if there is a new trial and the newly discovered evidence
will be admitted, it would probably alter the result. Probably lang.
May fighting chance, pero chance lang. You are not saying that if
the new evidence will be admitted, you will automatically win.
There is a probability that you will win. And the court will say, I
think probable. Ok, new trial granted. Then defendant, PASOK!
(cguro, d jdge hir is myk enriquez?) Then, the evidence will be
presented and we will find out if you can win.
A: The following are the GROUNDS for a motion for

reconsideration:
1)
2)
3)
The damages awarded are excessive;

The evidence is insufficient to justify the decision or final
order;
The decision or order is contrary to law. (in effect, the
decision is wrong)
NEW TRIAL vs. REOPENING OF TRIAL

Motion for reconsideration is more common. Motions for new trial
are very rare.
The SC has already made pronouncements on what the reopening

of trial meant. Reopening of trial is not found in the law. There is
no express rule, but it is admittedly allowed. Now give an example
of reopening of trial.
In a motion for reconsideration, you convince the court that the

decision is wrong, that the decision is contrary to law.
EXAMPLE: Tapos na ang trial. What will come next is decision and
then the party said, Your honor, could we reopen the trial? Meron
kaming nakalimutan eh. I forgot an important piece of evidence.
Now, that cannot be new trial because wala pa man ang judgment.
Rule 37 applies only when there is already a judgment. In the
example, is that a motion for new trial? No. It should be called a
motion for reopening of trial.
MOTION FOR NEW TRIAL OR RECONSIDERATION; FORMAL

REQUIREMENTS
Sec. 2. Contents of motion for new trial or
reconsideration and notice thereof. The
motion shall be made in writing stating the
ground or grounds therefor, a written notice
of which shall be served by the movant on
the adverse party.
So if the motion is filed after the judgment is rendered, it is called

motion for new trial. When the motion is filed before a judgement
is rendered, it should be called a motion for reopening of trial.
A motion for new trial shall be proved in the

manner provided for proof of motions. A
motion for the cause mentioned in paragraph
(a) of the preceding section shall be
supported by affidavits of merits which may
be rebutted by affidavits. A motion for the
cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by
whom such evidence is expected to be given,
or by duly authenticated documents which
are proposed to be introduced in evidence.
EXAMPLE: A judge after trying the case, Alright, I will not decide
yet. I want to go to the area and look at the property. Meaning,
the court, on its own, would like to conduct an ocular inspection.
That is a reopening of the trial. Now, was there any motion by
anybody? Wala man ba. The court itself initiated it. And that is
allowed said by the SC. Reopening of trial is bound by no rules. The
judge with or without a motion can do it. The only ground for
reopening of trial is interest of justice. And that is very broad. So
there are no rules.
The SC said: New trial should be distinguished from the exercise of
the discretionary power of the court to REOPEN a trial for the
introduction of additional evidence, to clarify its doubts on material
points. This discretionary power is subject to no rule other than the
paramount interest of justice and will not be reviewed on appeal
unless the exercise thereof is abused. (Arce vs. Arce, L-13035, Nov.
28, 1959) So it is one of the inherent powers of the court.
A motion for reconsideration shall point out

specifically the findings or conclusions of the
judgment or final order which are not
supported by the evidence or which are
contrary to law, making express reference to
the testimonial or documentary evidence or
339

to the provisions of law alleged to be

contrary to such findings or conclusions.
1)
2)
A pro forma motion for new trial or

reconsideration
shall
not
toll
the
reglementary period of appeal. (2a)
3)
the hature or character of FAME;

the facts constituting the movant's good and substantial
defense or valid cause of action; and
the evidence which he intends to present if his motion is
granted.
Section 2, second paragraph says, A motion for the cause

mentioned in paragraph [a] of the preceding section shall be
supported by affidavits of merits Paragraph [a] is FAME. So, a
motion for new trial on the ground of FAME must be accompanied
by affidavits of merits. A motion for the cause mentioned in
paragraph a shall be supported by affidavit of merit. A motion
based on the ground in letter b shall be supported by affidavits of
the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be
introduced in evidence (Sec. 2). Non-compliance with this
requirement would reduce the motion to a mere pro forma
motion. Under the explicit provisions of the rule (Sec. 2), a pro
forma motion for reconsideration shall not toll the reglementary
period of appeal.
Q: What should be the form of a motion for new trial?

A: It must be in writing. You must state the ground or grounds for
the motion, whether it is FAME or newly discovered evidence.
Then, of course, you must serve a copy of the motion to the
adverse party. Meaning, you comply with all the requisites of a
valid motion.
PEOPLE vs. CA 296 SCRA 418 [Sept. 25, 1998]
FACTS: Inday filed a motion for new trial without a notice of
hearing (this is a violation of paragraph of Section 2). But she filed
the motion within 15 days. Inday filed a supplemental motion with
notice of hearing but filed beyond the 15-day period. Should the
court deny the motion?
Affidavit of Merit
HELD: The motion should be denied. A supplemental pleading

subsequently filed to remedy the previous absence of notice will
not cure the defect nor interrupt the tolling of the prescribed
period within which to appeal.
The affidavit of merits, must be one showing the facts (not mere
conclusions or opinions) constituting the valid cause of action or
defense which the movant may prove in case a new trial is granted,
because a new trial would serve no purpose and would just waste
the time of the court as well as the parties if the complaint is after
all groundless or the defense is nil or ineffective.
We are not impressed by the argument that the supplement filed

by the appellants on May 30 should be deemed retroactive as of
the date the motion for reconsideration was filed and, therefore,
cured the defect therein. To so consider it would be to put a
premium on negligence and subject the finality of judgments to the
forgetfulness or whims of parties-litigants and their lawyers. This of
course would be intolerable in a well-ordered judicial system.
Under the Rules, the moving party must show that he has a
meritorious defense. The facts constituting the movants 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 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. Petitioners
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 vs. First Metro Integrated Steel Corporation, G.R. No. 167245,
Sept. 27, 2006).
The second paragraph says, A motion for new trial shall be proved
in the manner provided for proof of motions What does that
mean? What is the proof of motions? The manner or proving
motions is also found in Rule 15, Section 3:
Rule 15, Sec. 3. Contents. - A motion shall
state the relief sought to be obtained and the
grounds upon which it is based, and if
required by these Rules or necessary to prove
facts alleged therein, shall be accompanied
by supporting affidavits and other papers.
(3a)
An AFFIDAVIT OF MERITS is one which recites the nature and

character of FAME on which the motion is based and stating the
movants good and substantial cause of action or defense and the
evidence he intends to present if the motion is granted, which
evidence should be such as to warrant reasonable belief that the
result of the case would probably be otherwise. (Paz vs. Inandan, 75
Phil. 608; Manila Surety vs. Del Rosario, 101 Phil. 412)
Q: Everytime you file a motion, is it necessary that the ground for

your motion is supported by affidavits or other papers?
A: If it is necessary YES. If it is not necessary NO NEED. If
necessary, you must attach documents or supporting affidavits like
a medical certificate for a motion to postpone due to illness.
Meaning, you must state the facts surrounding FAME and your
meritorious cause of action or defense whether you are the
plaintiff or the defendant. You explain why you are a victim of
fraud, etc. and that you have a good cause of action or defense
which if there will be a new trial, you might win. It is not enough
that you are a victim of FAME, you must also have a meritorious
cause of action or defense.
Q: Is it necessary that when you file motion for new trial, you must
attach affidavits?
REQUIREMENTS WHEN THE GROUND IS F.A.M.E.
A motion for new trial based on FAME must include an affidavit of
merit, which states:
Q: What happens if you file a motion without affidavit of merits?
340

A: Then, your motion for new trial will be immediately denied. It is

a fatal mistake. Your motion for new trial is classified as a
PRO-FORMA motion for new trial.
A: SC No, those are generalities, you must recite the facts

constituting the FAME. You must describe exactly what happened
to you. To say that you have good cause of action or defense is
INSUFFICIENT.
Pro-forma motion is one where the movant fails to make reference

to the testimonial and documentary evidence on record or the
provisions of law alleged to be contrary to the trial court's
conclusion as well as the reasons thereof or if there is no affidavit of
merit.
You must state what is the nature of that cause of action or

defense and evidence you intend to present. So, there is an
affidavit of merit but it is fatally defective. Again what will happen
to the motion. It will be treated as pro-forma. The affidavit of
merit is defective.
Two types of pro-forma motion for new trial:

MANIPOL vs. LIM TAN 55 SCRA 202
1)
2)
It is a motion for new trial which does not comply in

substance or in form with Sections 1 and 2 of Rule 37;
and
a second motion for new trial on a ground available to
the party when the first motion was filed (Section 5).
FACTS : A defendant in an action for damages based on quasi-delict

filed a motion for new trial citing FAME. He says, I have a good
and meritorious cause of action or defense. I intend to prove that I
exercised due diligence in the selection or supervision of my drivers
and which if proven relieves the employer from liability.
Indicators of a pro-forma motion

1)
it is based on the same ground as that raised in the

denied motion under Rule 37;
2)
it contains the same arguments in the opposition to a

granted motion to dismiss;
3)
the ground alleged in the second motion for new trial

already existed; was available and could have been
alleged in the first motion for new trial which was
denied;
4)
it is based on the ground of insufficiency of evidence or

that the judgment is contrary to law but does not specify
the supposed defects in the judgment;
5)
it is based on FAME but does not specify the facts

constituting these grounds and/or is not accompanied by
an affidavit of merit; and
6)
non-complaince wh the requirements of R 15.
HELD: Affidavit of merits is defective. It is pro-forma motion. It

does not state the meritorious defense. There is only a general
statement or conclusion of the defendant. The defendant should
state the details of how he supervised his employees. You go to
specifics.
The law is very strict about affidavits of merits. It is not enough
that you state your defense. You must demonstrate that you have
a meritorious claim of defense so that the motion for new trial will
be granted. What is the use of granting a new trial if after the new
trial you will still end up losing the case? It would be a waste of
time. According to SC, It would be pointless to reopen a case if a
party does not have a meritorious cause of action of defense for like
a mirage it would merely raise false hopes and at the end avail the
movant nothing. (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It
would raise false hope if you will grant a new trial when in fact the
movant has no meritorious cause of action. Its like a mirage or
illusion seeing things which are not there. [malayo ang tingin,
hindi naman duling]
It seems that there are really two affidavits. Normally when a
lawyer files motion for new trial, there is one affidavit reciting
FAME and reciting the meritorious cause of action or defense. If
you follow the SC there are two (2) affidavits: FIRST affidavit
regarding the FAME; and SECOND affidavit regarding the
meritorious cause of action of defense.
Note that a motion for reconsideration, if based on the same

grounds as that of a new trial is considered a motion for new trial
and has the same effect. (Rodriguez vs. Rovira, GR No. 45252, Sept.
24, 1936)
Q: What is the EFFECT of a pro-forma motion for new trial?
But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied
that the real Affidavit Of Merits should be the second one that I
have a good and meritorious defense. In reality, there should be
two (2) affidavits one reciting the FAME and one reciting the
substantial cause of action. That is why a motion for new trial on
FAME should ordinarily be accompanied by two affidavits. One
setting forth the facts and circumstances alleged to constitute
FAME and the other an Affidavit of Merits setting forth the
particular claims to constitute the movants meritorious defense or
cause of action. The real Affidavit of Merits is the second one.
A: The period to appeal is NOT interrupted by the filing of such

motion for new trial. Even the right to appeal may be forfeited
because of this defect. The effect is now stated in the last
paragraph of Section 2:
A pro forma motion for new trial or
reconsideration
shall
not
toll
the
reglementary period of appeal. (2a)
REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED

EVIDENCE
Q: Suppose a movant will file a motion for new trial in the ground
of FAME with the affidavits of merits and says I am a victim of
fraud and if such motion is granted, I have a good and meritorious
cause of action or good and meritorious defense. Is the affidavit
sufficient?
Q: Suppose your ground for new trial is newly discovered evidence

(NDE). What is the requirement?
341

A: Section 2, 2nd paragraph, 3rd sentence provides, A motion for

the cause mentioned in (Section 1) paragraph [b] (NDE) shall be
supported by affidavits of the witnesses by whom such evidence is
expected to be given, or by duly authenticated documents which
are proposed to be introduced in evidence.
Q: What happen when you file a motion for reconsideration

without making any reference, exhibit etc? Meaning, you did not
comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will
never interrupt the reckoning of the prescriptive period.
Meaning, when the ground is newly discovered evidence, the

motion shall be supported by affidavits also affidavits of the
newly discovered witness or a copy of the newly discovered
document. You have to state what is the newly discovered evidence,
what the witness will say.
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 vs.
Flojo, 251 SCRA 87).
Q: What happen when such requirement is not complied with?
The SC once defined a pro forma motion as one filed for the sake of
form. (Dapin vs. Dionaldo, G.R. No. 55488, May 15, 1992)
A: The motion for new trial on the ground of NDE is treated as PROFORMA and it never tolled the reglementary period to appeal.
Q: Again, what are the grounds for a motion for reconsideration?
Another POINT: when you file a motion for reconsideration on the

ground that the judgment is contrary to law, it is not enough for
you to say that. You must always point out clearly why it is contrary
to law, otherwise your motion will be denied or treated as proforma.
A: The following are the GROUNDS for a motion for

reconsideration:
Q: When you file a motion for reconsideration and it is denied,

does it mean to say that your motion is pro-forma?
MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS
1)
2)
3)
The damages awarded are excessive;

The evidence is insufficient to justify the decision or final
order;
The decision or order is contrary to law. (in effect, the
decision is wrong)
A: NO, because maybe the judge was not convinced but you tried
your best. The denial of motion for reconsideration on the ground
that the decision or judgment is wrong does not automatically
make the motion a pro-forma. What makes it pro-forma is, if your
motion for reconsideration does not specifically point out why
judgment is wrong. But if you comply with Section 2, that is
already sufficient.
Pro forma MR
In the cases where a Motion for Reconsideration was held to be pro
forma, the motion was so held because
In the case of
MARIKINA VALLEY DEVT. CORP. vs. FLOJO 251 SCRA 87 [1995]
1)
it was a second MR, 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.
HELD: A motion for reconsideration merely reiterates or repleads

the same arguments which had been previously considered and
resolved in the decision sought to be reconsidered, the motion is a
pro forma one.
The circumstance that a motion for reconsideration deals with the
same issues and arguments posed and resolved by the trial court in
its decisions does not necessarily mean that the motion must be
characterized as merely pro forma. A pleader preparing a motion
for reconsideration must of necessity address the arguments made
or accepted by the trial court in its decision. The movant is very
often confined to the amplification or further discussion of the
same issues already passed upon by the trial court. Precisely,
when I filed a motion for reconsideration, we will go over the same
points which the court has already discussed.
Q: Can you file a motion for reconsideration by just simply stating

that the decision is wrong or contrary to law, or the findings of
the judge are not supported by evidence?
A: NO. Under Section 2, 3rd paragraph, you must 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.
Where the circumstances of a case do not show an intent on the

part of the movant merely to delay the proceedings, our Court has
refused to characterize the motion as simply pro forma. The
doctrine relating to pro forma motions for reconsideration impacts
upon the reality and substance of the statutory right of appeal, that
doctrine should be applied reasonably, rather than literally. The
right to appeal, where it exists, is an important and valuable right.
So, you must point out what findings is not supported by evidence
what conclusion is contrary to law. Do not let the judge look for
it. The judge will never bother to look for it. You tell him what
portion of the decision is wrong. You have to cite the evidence too
and the law which is violated or what provisions apply.
A motion for reconsideration which is not as starkly bare but

which, as it were, has some flesh on its bones, may nevertheless be
rendered pro forma where the movant fails to make reference to
the testimonial and documentary evidence on record or the
342

provisions of law said to be contrary to the trial courts conclusions.

In other words, the movant is also required to point out succinctly
why reconsideration is warranted.
will remain. The case will be opened only for the purpose
of admitting the new evidence.
Q: If Cholo files a Motion For Reconsideration and it is granted, will
there be a trial de novo?
It is not enough that a motion for reconsideration should state

what part of the decision is contrary to law or the evidence; it
should also point out why it is so. Failure to explain why will render
the motion for reconsideration pro forma. Meaning, when I point
out part of the decision that is contrary to the law, it is not pro
forma. But still it is pro forma if I will not state that it is contrary to
law.
A: There is NO trial de novo. The court will simply amend its

judgment. It is only a re-study of provision. The court will study its
decision and go over the evidence and find out whether it made a
mistake or not
Period to Resolve Motion for New Trial or Reconsideration
Where a substantial bonafide effort is made to explain where and

why the trial court should be regarded as having erred in its main
decision, the fact that the trial court thereafter found such
argument unmeritorious or as inadequate to warrant modification
or reversal of the main decision, does not, of course, mean that the
motion for reconsideration should have been regarded, or was
properly regarded, as merely pro forma.
Sec. 4. Resolution of motion. A motion for

new trial or reconsideration shall be resolved
within thirty (30) days from the time it is
submitted for resolution. (n)
There is now a deadline for the court to act on the motion within
30 days from the time it is submitted for resolution.
So, I point the decision but the court does not agree with me. That
does not mean that my motion is automatically pro forma because
there was attempt to convince the court why it is wrong.
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 notice of appeal for
the same reason and grounds as the fresh period rule governing
a denial of a motion for reconsideration (Neypes vs. CA, G.R. No.
141524, Sept. 14, 2005)
EFFECTS WHEN MOTION IS GRANTED

Sec. 3. Action upon motion for new trial or
reconsideration. The trial court may set aside
the judgment or final order and grant a new
trial, upon such terms as may be just, or may
deny the motion. If the court finds that
excessive damages have been awarded or
that the judgment or final order is contrary to
the evidence or law, it may amend such
judgment or final order accordingly. (3a, R37)
The fresh period rule applies to Rule 41 governing appeals from the
MTC to the RTC; Rule 42 on petitions for review from the RTC to
the CA; Rule 43 on appeals from quasi-judicial agencies to the CA
and Rule 45 governing appeals by certiorari to the SC. 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 their case and, in
the process, minimize any error of judgment.
Sec. 6. Effect of granting of motion for new

trial. If a new trial is granted in accordance
with the provisions of this Rule, the original
judgment or final order shall be vacated, and
the action shall stand for trial de novo; but
the recorded evidence taken upon the former
trial, in so far as the same is material and
competent to establish the issues, shall be
used at the new trial without retaking the
same. (5a)
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
judgment.
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 reconsideration but
to the period within which to appeal from the judgment itself
because an order denying a motion for reconsideration or new trial
is not appealable (Section 9).
Q: In Section 3, how will the court resolve your motion for new
trial?
A: The court may either deny or may set aside the judgment or final
order and grant a new trial. Literally, if the judgment is set aside,
there will be a trial de novo, a Latin word for new trial.
Remedy when motion is denied
BAR QUESTION: If Cholo files a Motion For New Trial and it is

granted, will there always be a trial de novo?
The remedy from an order denying a motion for reconsideration is

not to appeal from the order of denial because such order is not
appealable. The remedy is to appeal from the judgment or final
order itself subject of the motion (Sec. 9).
A: It DEPENDS on the ground for the motion:

a)
If the ground is FAME, there will be a trial de novo

because the proceeding will be set aside;
Can an order of denial be assailed by a petition for certiorari

under Rule 65?
b)
If the ground is NDE, there is no trial de novo. The

evidence admitted which is based on the same decision
Not anymore. Effective December 27, 2007, an order of denial is

no longer assailable by certiorari because of the amendment to
343

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
petition may be availed of, is an order denying a motion for new
trial or a 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, i.e., to appeal from the judgment or final
order.
Q: What happens if you file a second motion for new trial on a

ground which is then available when the first motion was filed?
A: The second motion is a pro forma motion and will not interrupt
the remaining balance of the period to appeal after the first motion
was denied. There was a clear violation of omnibus motion rule.
Q: So, there are two (2) types of pro forma motion for new trial
under Rule 37. What are they?
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION
A: The following:
Sec. 5. Second motion for new trial. A motion

for new trial shall include all grounds then
available and those not so included shall be
deemed waived. A second motion for new
trial, based on a ground not existing nor
available when the first motion was made,
may be filed within the time herein provided
excluding the time during which the first
motion had been pending.
1)
2)
A motion for new trial which is not supported by

affidavits of merits one which does not comply in
substance or in form with Section 2; and
A second motion for new trial on a ground available to
the party when the first motion was filed (Section 5).
Take note that the 2nd paragraph of Section 5 provides that No

party shall be allowed a second motion for reconsideration of a
judgment or final order. Therefore, a second motion for
reconsideration is always treated as a pro forma motion because it
is totally prohibited by Section 5.
No party shall be allowed a second motion

for reconsideration of a judgment or final
order. (4a, R37; 4, IRG)
Q: Distinguish a Motion for New Trial from a Motion for

Reconsideration.
"Single motion rule" simply means that a party shall not be

allowed to file a second motion for reconsideration of judgment or
of a final order (Riano, 2009).

1)
As a rule, the motion for new trial shall include all grounds then
available and those not included are deemed waived. So, if the
motion for new trial is based on two (2) grounds FAME and NDE
either or both grounds should be included in the motion.
As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME and
NDE, whereas
In a MOTION FOR RECONSIDERATION, the grounds are
excessive damages, decision is not supported with
evidence, or decision is contrary to law;
Q: Suppose a motion for new trial, which is based only on FAME,

was denied, can there be a second motion for new trial on the
ground of NDE?
2)
As to trial:
A: It DEPENDS:
a)
b)
If a MOTION FOR NEW TRIAL is granted, there could be a

trial de novo; whereas
If the NDE is already existing when the first motion was

filed, then the second motion for new trial will be denied
because of failure to raise it earlier the second ground
is deemed waived for failure to raise the same;
If as MOTION FOR RECONSIDERATION is granted, there is

no trial de novo. The court will only amend its decision
However, if the ground for the second motion for new

trial is something not known or not existing or not
available when the party filed the first motion, then the
second motion is allowed. The second motion is not a
pro forma motion.
3)
As to a second motion:
A second MOTION FOR NEW TRIAL is allowed if the
ground was not existing when the first motion for new
trial was filed; whereas
So, what the law prohibits is you file a motion for new trial and you
do not include all the grounds then available. If the ground
surfaced only later, then it is allowed. Therefore, the motion for
new trial is an example of omnibus motion as defined in Rule 15,
Section 8:
A second MOTION FOR RECONSIDERATION is always

prohibited under the rules.
Sec. 7. Partial new trial or reconsideration. If
the grounds for a motion under this Rule
appear to the court to affect the issues as to
only a part, or less than all of the matter in
controversy, or only one, or less than all, of
the parties to it, the court may order a new
trial or grant reconsideration as to such
issues if severable without interfering with
Sec. 8. Omnibus motion. - Subject to the

provisions of section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or
proceeding shall include all objections then
available, and all objections not so included
shall be deemed waived. (8a)
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the judgment or final order upon the rest.

(6a)
prescribe such conditions as may be

necessary to secure the benefit thereof to the
party in whose favor the judgment is
rendered. (5a)
Q: Is there such a thing as motion for partial new trial or a motion

for partial reconsideration?
Finality of judgment with respect to one portion of the case and the
trial continues with the other portion. There are several judgments
involving one action and technically, if one is finished, it can be
enforced unless the court provided otherwise. Another provision is
Rule 39, Section 2 [b]:
A: YES, if the party is questioning only one aspect or portion of the

case. Therefore, the rest can become final while the disputed
portion does not become final.
So, there could be a new trial or reconsideration only on such
issues and there will be a final judgment with respect to the other
issues of the case. How could this happen? The best example is
Rule 31, Section 2:
Rule 39, Sec. 2. Discretionary execution.

xxxxx
Rule 31, Sec. 2. Separate trials. The court, in

furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or thirdparty complaint, or of any separate issue or
of any number of claims, cross-claims,
counterclaims, third-party complaints or
issues. (2a)
(b) Execution of several, separate or partial

judgments. A several separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal. (2a)
Discretionary execution or execution pending appeal. In case of an
appeal, Section 1, Rule 41 [g]:
If the cross-claim or third-party complaint are tried separately,

there will be different judgments. And in effect, you can file a
partial motion for new trial or reconsideration to the facts
contemplated by the case.
Rule 41, Section 1. Subject of appeal. An

appeal may be taken from a judgment or final
order that completely disposes of the case, or
of a particular matter therein when declared
by these Rules to be appealable.
Sec. 8. Effect of order for partial new trial.

When less than all of the issues are ordered
retried, the court may either enter a
judgment or final order as to the rest, or stay
the enforcement of such judgment or final
order until after the new trial. (7a)
No appeal may be taken from:

xxxxx
(g) A judgment or final order for or against
one or more of several parties or in separate
claims, counterclaims, cross-claims and thirdparty complaints, while the main case is
pending, unless the court allows an appeal
therefrom; and
This is a continuation of Section 7.

Q: When there is a partial new trial, what will happen to the
judgment on the undisputed facts?
xxxxx
A: Either:
a)
b)
Lets go back to Rule 37.
the court will enter judgment on it; or

the court may stay the enforcement until after the new
trial.
Sec. 9. Remedy against order denying a

motion for new trial or reconsideration. An
order denying a motion for new trial or
reconsideration is not appealable, the
remedy being an appeal from the judgment
or final order. (n)
The following rules will describe the situation in Section 8:

Rule 36, Sec. 5. Separate judgments. When
more than one claim for relief is presented in
an action, the court, at any stage, upon a
determination of the issues material to a
particular claim and all counterclaims arising
out of the transaction or occurrence which is
the subject matter of the claim, may render a
separate judgment disposing of such claim.
The judgment shall terminate the action with
respect to the claim so disposed of and the
action shall proceed as to the remaining
claims. In case a separate judgment is
rendered, the court by order may stay its
enforcement until the rendition of a
subsequent judgment or judgments and may
An order denying a motion for new trial or reconsideration is not

appealable (c.f. Rule 41, Section 1 [a]. The remedy being an appeal
from the judgment or final order.
ILLUSTRATION: The judgment is against you. So you filed a motion
for new trial or reconsideration. The court denied your motion. So
there is an order denying your motion for new trial or
reconsideration. Now, you want to appeal.
Q: Appeal from what? From the main judgment or from the order
denying your motion?
345

A: You appeal from the judgment. You cannot appeal from the
order denying your new motion for new trial. That is related to
Rule 41, Section 1 [a]:
Rule 41, Section 1. Subject of appeal. An
appeal may be taken from a judgment or final
order that completely disposes of the case, or
of a particular matter therein when declared
by these Rules to be appealable.
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
xxxxxx
Well, of course, the filing of this motion will stop the running of the
15-day period, unless your motion for new trial is pro-forma.
Generally, the law does not allow an appeal from the order denying
your motion for new trial. You appeal from the decision, not from
the order denying your motion. This provision will come out again
when we reach the rule on appeal.
OUTLINE of the process: (after trial)
1.)
2.)
3.)
4.)
Decision/Judgment;
Motion for New Trial or Reconsideration (Rule 37);
If denied, court makes a order denying your motion for new
trial or reconsideration;
Appeal based on the decision/judgment and not based on
the order denying your motion.
346

Rule 38
Grounds:
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
1)
Section 1. Petition for relief from judgment,

order, or other proceedings. When a judgment
or final order is entered, or any other
proceeding is thereafter taken against a party
in any court through fraud, accident, mistake,
or excusable negligence, he may file a
petition in such court and in the same case
praying that the judgment, order or
proceeding be set aside. (2a)
when judgment or final order is entered into or any

other proceeding is thereafter taken against the
petitioner through FAME;
The "other proceeding" includes an order or writ of
execution, or an order dismissing an appeal (Medran vs.
CA 83 Phil. 164)
2)
When petitioner has been prevented from taking an

appeal by FAME.
A petition for relief has been held to be applicable to all
kinds of special proceedings, such as land registration,
intestate settlement, and guardianship proceedings
(Regalado, Remedial Law Compendium, Vol. 1, 9th ed. p.
432)
This is not applicable to the Supreme Court because it is not a trier

of facts
After the judgment becomes final and executory, the losing party
may avail of the following:
Nature of the petition

a)
b)
c)
d)
Petition for Relief from Judgment;

Action to Annul a Judgment;
Certiorari; and
Collateral attack of a judgment.
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
vs. VHF Philippines GR 138500, Sept. 16, 2005)
The term final when used to describe a judgment may be used in

two senses
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 (Trust International Paper Corporation vs. Pelaez GR
164871, August 26, 2006). Also, a party who has filed 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. The
remedy is to appeal from the judgment (Sec. 9 R 38, Francisco vs.
Puno 108 SCRA 427).
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 vs.
Singson, 454 SCRA 612). Here the remedies are a Motion for
Reconsideration, motion for New Trial and appeal.
In another sense 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 lapsed without a party having
perfected an appeal of it there has been an appeal, it has already
been resolved by a highest possible tribunal (PCGG vs.
Sandiganbayaan 455 SCRA526). In this sense, the judgment is
commonly referred to as one that is final and executory.
Q: What are the different remedies available to a defaulted

defendant granted by the rules?
Rule 38 is known as the remedy of petition for relief from judgment

or final order. The grounds cited here are actually the same as the
grounds for new trial FAME. We are meeting FAME for the third
time. It seems to be a ground that keeps on going back. First in
Default, then New Trial, and now a ground for petition for Relief
from Judgment.
A: The following:
This is not an independent action but a continuation of the old case.

It is filed with the same court which decided it.
Under the present Rules, petitions for relief from a judgment, final
order or other proceedings 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 court shall be filed in and
decided by the same court in the same case, or in the Regional Trial
Court if the case was decided by it (Redena vs. CA GR No. 146611,
February 6, 2007).
Upon service of the order of default but before judgment

upon default is rendered under Rule 9 you can file a
motion to set aside the order of default on the ground
that his failure to file answer was because of FAME;
If there is already a default judgment, the correct

procedure is to file a motion for new trial under Rule 37
on the ground of FAME within the period to appeal,
meaning, before judgment becomes final and executory;
If the judgment is already final and executory, the remedy

is to file a petition for relief from judgment under Rule 38
on the ground of FAME.
So if you are a passenger ,who is a defaulted defendant, and you

want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip,
Rule 38 is last trip.
347

Motion for New Trial (R 37) vs. Petition for Relief (R 38)
1.
MNT is available before the judgment becomes final and

executory while the
PR is available after the judgment becomes final and
executory;
2.
MNT applies to judgments and final orders only while

PR applies also to other proceedings;
3.
The grounds for MNT are FAME and newly discovered

evidence while
PR is grounded on FAME;
4.
5.
6.
7.
fraud, accident, mistake, or excusable

negligence, has been prevented from taking
an appeal, he may file a petition in such court
and in the same case praying that the appeal
be given due course. (1a)
In most cases, or 95% of petition for relief, a party files a petition
for relief from the judgment rendered against him. Actually that is
not true. The remedy of petition for relief is not only limited to
judgments but the law says orders, or other proceedings. That is
very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal was
beyond 15 days. So, there will be an order denying my appeal
because my appeal should be within 15 days.
MNT is filed within the time to appeal while

PR should be filed within 60 days from knowledge of the
judgment and within 6 months from entry of judgment;
Q: And suppose such order prevented me from taking an appeal

because of FAME, can I file a petition for relief?
If MNT is denied, the order of denial is not appealable,

hence the remedy is appeal from judgment, while
if PR is denied, the order denying a petition for relief is
also not appealable but the appropriate remedy is the
appropriate civil action under R 65;
A: Yes, not from the judgment but from the order denying my
appeal on the ground of FAME. And the court will grant me relief
by allowing me to appeal. So there, I am not questioning the
judgment but I am only questioning the order not allowing me to
appeal.
MNT is a legal remedy while

PR is an equitable remedy;
But as I said, in most cases, petition for relief are based on Section
1 rather than Section 2. Bihira yung petition for relief from the
order denying the appeal.
A motion for new trial need not be verified while

PR must be.
Is there a deadline in filing a petition for relief from judgment? YES.

Section 3:
A party who has filed a timely motion for new trial and/or
reconsideration cannot file a petition for relief after his motion has
been denied. These remedies are exclusive of each other. It is only
in appropriate cases where a party aggrieved by the judgment has
not been able to file a motion for new trial and/or reconsideration
that a petition for relief can be filed. (Francisco vs. Puno GR No. L55694, October 23, 1981).
Sec. 3. Time for filing petition; contents and

verification. A petition provided for in either
of the preceding sections of this Rule must be
verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not
more than six (6) months after such judgment
or final order was entered, or such
proceeding was taken; and must be
accompanied with affidavits showing the
fraud, accident, mistake, or excusable
negligence relied upon, and the facts
constituting the petitioner's good and
substantial cause of action or defense, as the
case may be. (3)
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 vs. CA 470 SCRA
697).
Petition is available to proceedings after the judgment
Q: When you file a petition for relief from judgment, or final order,
what are the formal requirements?
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 of judgment or final order such as an order of
execution (Cayetano vs. Ceguerra, 13 SCRA 73).
A: The formal requirements are:

a)
b)
c)
Can you file a petition for relief not from a judgment but from an
order? Section 2:
The petition must be verified;

The petition for relief must be accompanied with
affidavits showing the FAME relied upon;
the affidavit of merit must also show the facts
constituting the petitioners good and substantial cause
of action or defense as the case may be.
Affidavit of merit is one which recites the nature and character of

FAME on which the motion is based.
Sec. 2. Petition for relief from denial of appeal.

When a judgment or final order is rendered
by any court in a case, and a party thereto, by
348

It serves as the jurisdictional basis for the court to entertain a

petition for relief. However, it is not a fatal defect to warrant denial
of the petition so long as the facts required to be set out also
appear in the verified petition.
only last week or seven days ago. Today is February 1998. So I

asked my lawyer to file a petition for relief this week.
Instances when an affidavit of merit is not necessary
A: NO. It is filed out of time. It is true that I only learned about it a

week ago. But definitely, the filing is beyond 6 months from the
date of its entry which is June 1997. You complied with the first
period but you did not comply with second period. Both periods
must be complied.
1.
2.
3.
4.
5.
Q: Is the petition filed on time?
where there is no jurisdiction over the defendant;

where there is no jurisdiction over the subject matter;
where judgment is taken by default;
where judgment was entered by mistake or was
obtained by fraud; or
other similar cases.
PROBLEM: The judgment was entered against me last December

1997, and there was entry of final judgment in December 1997. I
learned about it last December also; and now March, 1998, I will
file a petition for relief from judgment.
Q: Now, does that requirement sound familiar again, that there

must be an affidavit showing the fame and the petitioners
substantial cause of action or defense?
Q: Can I still file the petition for relief?
A: Yes, that is the requirement under the motion for new trial,
affidavit of merits. Therefore, AFFIDAVIT OF MERITS which is a
requirement in Rule 37 is also a requirement in Rule 38. That is the
identical feature of new trial of fame and petition for relief.
A: No more. Although it is within 6 months (December to March is

only 3 months) from date of entry BUT definitely, between
December to March is more than 60 days. So the petition can no
longer be filed. That is how you apply the two periods. Both
periods must be complied.
Q: What will happen if a party files a petition for relief without

any affidavit of merits, or with a defective affidavit?
Q: Is the period for filing a petition for relief extendible?
A: The defect is FATAL and the petition will be denied outright

because of lack of affidavit merits. It is the affidavit of merits which
serves as the jurisdictional basis for the court to entertain a
petition for relief. (Fernandez vs. Tan Tiong Tick, L-15877, April 28,
1961)
A: The remedy allowed by Rule 38 is merely an act of grace or

benevolence intended to afford a litigant a penultimate
opportunity to protect his interest. Considering the nature of such
relief and of the purpose behind it, the periods fixed by said rule
are NON-EXTENDIBLE and is never interrupted; nor can it be
subject to any condition or contingency because it is itself devised
to meet a condition or contingency. (Smith, Bell & Co. vs. Phil.
Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta, L16473, April 20, 1961)
Q: When do you file a petition for relief?

A: Once the judgment complained of has become final and
executory because the remedy of new trial is lost. But it does not
mean that you can file your petition for relief anytime. There is also
a deadline.
Well, of course, petition for relief according to SC, is penultimate

remedy given by the law to a victim of FAME. Because, if you are a
victim of FAME, you lose the case because of that reason.
Somehow the law would like to help you lalo na pagna-default ka.
O.K., you have Rule 9, file ka nang motion to lift order of default.
Hindi ako nakahabol eh, may-judgment na. O sige, Rule 38
petition for relief. But paglumampas ka dyan, sorry na lang.
Q: What is the DEADLINE?

A: Under Section 3, the petition must be filed within:
Within SIXTY (60) DAYS from the time the petitioner
learns of the judgment, order, or other proceedings to
be set aside, AND
Meaning, the law cannot help you forever. The law can only help
you up to a certain period. If you still do not do anything about it,
pasensiya ka na.
Not more than SIX (6) MONTHS after such judgment or

final order was entered, or such proceeding was taken.
Sec. 4. Order to file an answer. If the petition

is sufficient in form and substance to justify
relief, the court in which it is filed, shall issue
an order requiring the adverse parties to
answer the same within fifteen (15) days
from the receipt thereof. The order shall be
served in such manner as the court may
direct, together with copies of the petition
and the accompanying affidavits. (4a)
Q: What is the date of entry of judgment or final order?

A: It is the date of finality of judgment or final order (Rule 36,
Section 2). So, the date of entry is deemed to be the date of
finality.
So there are two (2) periods: 60 days and 6 months; and BOTH
periods must be complied with (Dirige vs. Biranya, L-22033, July 30,
1966). Otherwise, if you fail to comply with the two periods the
petition for relief will be denied for being filed out of time.
This remedy precludes the issuance of summons upon its filing. If

the petition is sufficient in form and in substance, the court shall
issue an order requiring the advese parties to answer within 15
days from receipt thereof.
PROBLEM: There was a judgment rendered against me in June

1997 and it became final and there was entry of final judgment in
June 1997, meaning talo na ako last year pa. But I learned about it
349

Failure to file an answer does a declaration of default.
and executory. In other words, I am questioning the judgment of

the court while siya naman, he is asking the court to enforce the
judgment.
You file a petition for relief, the court will issue an order requiring
the other party to answer. It is like a complaint all over again
where you are given 15 days to answer. Meaning sagutin mo
Would you agree that your opponent is a victim of FAME? In
other words, do you agree or disagree? yan ang sagutin mo. Do
you agree that he has meritorious cause of action (or defense)?
Meaning, you are given the right to oppose the petition for relief.
Q: Now, what is my remedy to stop the enforcement of the

judgment?
A: Under Section 5, I can ask the court to issue a writ of preliminary
injunction to stop the enforcement of the judgment. But I have to
put up a BOND conditioned that in the event that my petition for
relief is not meritorious, I will pay for all the damages that the
other party will incur because of the delay in the execution.
Sec. 5. Preliminary injunction pending

proceedings. The court in which the petition
is filed, may grant such preliminary injunction
as may be necessary for the preservation of
the rights of the parties, upon the filing by
the petitioner of a bond in favor of the
adverse party to answer for all damages and
costs that may be awarded to him by reason
of issuance of such injunction or the other
proceedings following the petition; but such
injunction shall not operate to discharge or
extinguish any lien which the adverse party
may have acquired upon the property of the
petitioner. (5a)
Sec. 6. Proceedings after answer is filed. After

the filing of the answer or the expiration of
the period therefor, the court shall hear the
petition and if after such hearing, it finds that
the allegations thereof are not true, the
petition shall be dismissed; but if it finds said
allegations to be true, it shall set aside the
judgment or final order or other proceedings
complained of upon such terms as may be
just. Thereafter the case shall stand as if such
judgment, final order or other proceeding
had never been rendered, issued or taken.
The court shall then proceed to hear and
determine the case as if a timely motion for a
new trial or reconsideration had been
granted by it. (6a)
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 of the 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).
BAR QUESTION: When a petition for relief from judgment is filed,

what are the hearings that will be conducted by the court?
A: In proceedings for relief from judgment, there may be two (2)
hearings, to wit:
1)
2)
So, the FIRST HEARING is to determine whether the petition should

be granted or not is the petition meritorious or not? Was there
FAME? Is there affidavit of merit? Is the affidavit proper? Is the
petition filed within the period allowed by the law or not? Now, if
the petition is denied that is the end of the story. Wala na.
Rule: Execution of judgment is not stayed unless a writ of

preliminary injunction is isuued by the court.
Preliminary injunction actually is a type of provisional remedy
which is governed by Rule 58. Injunction is to stop ba, to enjoin
somebody or stop the court from doing an act. That is the essence
of injunction.
Now, if the petition for relief is granted, the judgment will be set
aside as if it never existed. Then we will now try the case all over
again as if a motion for new trial has been filed. That is the second
hearing. The SECOND HEARING is the trial on the merits or a trial
de novo.
Upon filing of the petition:

1)
2)
a hearing to determine whether the judgment or order

complained of should be set aside, and
if the decision thereon is in the affirmative, a hearing on
the merits of the principal case.
the court in which the petition is filed may grant such

preliminary injunction as may be necessary for the
preservation of the right of the parties, upon the filing by
the petitioner of a bond in favor of the adverse party.
Such injunction shall not discharge any lien which the
adverse party may have acquired upon the property of the
petitioner.
Now, somebody was commenting, Ito bang petition for relief

parang appeal din? Is this similar to appeal? The answer is NO. In
the first place, there is no appeal here. Kaya nga the judgment has
become final and executory because there was no appeal. Now, in
an appeal, for example: Natalo ka sa kaso. When you appeal and
you win, the decision will be overturned. From losing, you become
the winner. That is the effect of appeal.
EXAMPLE: I lost in a case. The judgment became final and executory because I did not make an appeal. However, I filed a petition for
relief. In the meantime, my opponent is asking the court to execute
the decision which is his right because the judgment is already final
But in petition for relief, you are not asking the court to change its
decision. When a petition for relief from judgment is granted, the
decision against you will be set aside as if it was never rendered
350

and we will try the case all over again. In a petition for relief, the
court has no power to change its decision because it has already
become final and executory. But its power under Rule 38 is to set it
aside as if it was never rendered and conduct a new trial as if a
motion for new trial has been filed. So please do not confuse Rule
38 with the remedy of appeal.
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/Metropolitan Trial Courts as courts of
record.
Sec. 7. Procedure where the denial of an

appeal is set aside. Where the denial of an
appeal is set aside, the lower court shall be
required to give due course to the appeal and
to elevate the record of the appealed case as
if a timely and proper appeal had been made.
(7a)
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.xxx
This is a continuation of Section 2 what can be questioned in Rule

38 is not only a judgment but also an order, such as an order
denying an appeal.
Earlier, in Mesina vs. Meer 383 SCRA 625, the Court ruled that a
petition for relief from judgment is not an available remedy in the
CA and the SC.
Q: Can I file a petition for relief from the denial of an appeal?
Remedies if Rule 38 is no longer available
A: YES.
1)
2)
Q: And if my petition for relief from the order denying the appeal is
granted, what will happen?
Petition for Annulment of Judgment under R 47; and

A direct or collateral attack if judgment is void ab initio
for lack of jurisdiction.
Note: Under AM No. 08-8-7 SC, otherwise known as the Rule of

Procedure for Small Claims Cases, a Motion for New Trial or
Reocnsideration (R 37), and a Peition for Relief from Judgment (R
38) are prohibited pleadings.
A: According to Section 7, the court will now grant the appeal and
allow the appeal to proceed as if it was filed on time. Meaning, the
judgment will not be set aside but I will be given the right to appeal
if the failure to file an appeal as due to FAME.
Both remedies, likewise, are prohibited pleading under the Rule on

Summary Procedure.
No petition for relief in the Supreme Court

Can petitioner avail of a petition for relief from judgment under
Rule 38 from a resolution of the SC denying his petition for review?
The SC in Purcon vs. MRM Philippines, Inc. GR 182718, September
26, 2008 answered the question in the negative. A petition for
relief from judgment is not an available remedy in the SC. In
summary the SC explained, 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 petition for certiorari,
prohibition, mandamus, quo warranto, habeas corpus, disciplinary
proceedings against members 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 the Court.
Second, while Rule 38 uses the phrase any court, it refers only to
the Munici[pal/Metropolitan and Regional Trial Courts.
As revised, Rule 38 radically departs from the previous 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
351

Rule 39
A: EXECUTION is the remedy provided by law for the enforcement

of a judgment. (21 Am. Jur. 18) It is the fruit and the end of the suit
and is very aptly called the life of the law (PAL vs. Court of Appeals,
181 SCRA 557).
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Rule 39 is on the subject of Execution, Satisfaction and Effect of
Judgments. This is the longest rule in the study of Civil Procedure.
Take note that there are 48 Sections. Let us first review the
fundamentals.
It would be useless if there is judgment but you cannot enforce the

same.
Q: Who will enforce the judgment?
Q: When the judgment becomes final and executory, what are the
effects?
A: The very same court which rendered the judgment.
A: The finality of a judgment produces three (3) effects, to wit:

1)
The prevailing party is entitled to have the judgment

executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial
duty of the court (Rule 39);
2)
The court rendering the judgment loses jurisdiction over

the case so that it can no longer correct the judgment in
substance, except to make corrections of clerical errors
and omissions plainly due to inadvertence or negligence.
(Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L13927, Feb. 28, 1960; Maramba vs. Lozano, L-21533,
June 29, 1967)
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) In filing a motion for execution of an appealed
judgment, 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 (Borgonia vs. Decano 317 SCRA 660).
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 said judgment (Sec. 1) 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.
If after the judgment is rendered, you file a motion for

reconsideration or new trial, there is a possibility for the
court to change its mind and its judgment. But once the
judgment has become final, the court has no more
power to change its judgment substantially. The error
will also become final, you can no longer change
anything substantial.
If for whatever reason, the execution cannot be had with dispatch

in the court of origin, the new rules likewise afford 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).
Writ of execujudicial a judicial writ issued to an officer authorizing
him to execute the judgment of the court.
EXCEPTION: There is one type of judgment which can be

changed substantially even long after it became final as
an exception to this rule. In the study of Persons,
Judgment for Support. The judgment for support, which
can be modified at any time because the obligation to
give support depends not only on the resources of the
obligor, but also on the ever-changing needs of the
obligee. (Malabana vs. Abeto, 74 Phil. 13)
Q: How is execution generally done?

A: It is generally done by filing a motion for execution by the prevailing party and the court will then issue an order of execution,
which will be followed with a writ of execution, and the sheriff will
enforce the judgment.
In Lou vs. Siapno 335 SCRA 181, it was ruled 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 vs.
RTC of Kalibo, Aklan Br. 1 304 SCRA 440).
EXAMPLE: The father refuses to support his minor child.

After trial, the court orders the father to support the
child at P1,000 per month. Four years later, the father is
already well-off and the child is already in nursery or
kindergarten. So the child tells his lawyer that the
amount for support must be increased from P1,000 to
P5,000. The father says, the court said P1,000 and if
you change that to P5,000, that would be substantial.
The father is wrong. The amount for support can be
changed anytime. In the same manner. The amount can
also be lowered, as when the father loses his job.
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
vs. RTC of Kalibo Aklaan, Br. 1, supra).
Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May

15, 1962)
Because of the present phraseology of Sec. 1, rulings like those

made in De Mesa vs. CA 231 SCRA 773 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
abandoned.
The same cause of action between the same parties can

never be the subject matter of another litigation in the
future. Any subsequent case is barred by prior judgment.
Q: Define execution.
352

So, we file a motion in court after the judgment has become final
and executory.
2)
Q: How can the court issue the order when it has already lost
jurisdiction over the case because from what we have learned here
is that, one of the effects of the finality of judgment is that the
court loses jurisdiction over the case. And when the court loses
jurisdiction, it can no longer act on the case. So, how can it still
issue orders in that case when actually, once the judgment
becomes final and executory, the trial court loses jurisdiction over
the case and it can no longer act in that case?
it cannot vary the intent of the judgment it seeks to

enforce.
CLASSES OF EXECUTION
Q: What are the classes of execution under the law?

A: The following:
I.
As to their nature:
1)
A: What is meant by that statement is that, the court can no longer

change the judgment. That is why new trial and reconsideration is
not anymore available in this stage. The judgment is beyond the
power of the court to change or alter.
2)
II.
BUT definitely the court can act on that case for the purpose of
enforcing its judgment because it is absurd to claim that a trial
court has the power to try and hear a case but once the judgment
has already become final, it has no more power to enforce it. If you
will really describe jurisdiction in its complete aspect, we can say
jurisdiction is the power of the court to act on the case, to try, to
decide and to enforce its judgment. That would be more
complete. Because enforcement is part of the court's jurisdiction.
COMPULSORY execution known as Execution as a

Matter of Right (Section 1)
DISCRETIONARY execution known as Execution
Pending Appeal (Section 2)
As to how it is enforced (Section 6):

1)
2)
EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
COMPULSORY EXECUTION
(Execution as a matter of right)
EXECUTION AS A MATTER OF RIGHT;

FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Q: Against whom shall the execution issue?

Section 1. Execution upon judgments or final
orders. Execution shall issue as a matter of
right, on motion, upon a judgment or order
that disposes of the action or proceeding
upon the expiration of the period to appeal
therefrom if no appeal has been duly
perfected.
A: Generally, execution can issue only against a (losing) party to the

case and not against one who is a complete stranger because
majority of judgments are in personam. They are only enforceable
against the parties themselves or their successors-in-interest
people who derive their rights from him. And a judgement can
never be enforced against a complete stranger who never had his
day in court. (Cruzcosa vs. Concepcion, 101 Phil. 146; Castaeda vs.
De Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs. Enriquez, 55 O.G.
10545, Dec. 21, 1959)
If the appeal has been duly perfected and

finally resolved, the execution may forthwith
be applied for in the court of origin, on
motion of the judgment obligee, submitting
therewith certified true copies of the
judgment or judgments or final order or
orders sought to be enforced and of the entry
thereof, with notice to the adverse party.
Q: What portion in the decision is normally the subject of

execution?
A: It is the dispositive portion the WHEREFORE that is going
to be enforced. (Robles vs. Timario, 58 O.G. 1507, Feb. 19, 1962).
Writ of execution must conform with judgment
The appellate court may, on motion in the

same case, when the interest of justice so
requires, direct the court of origin to issue
the writ of examination.
The writ of execution must 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. vs. N:LRC 250 SCRA 418;
Equatorial Realty Development Inc. vs. Mayfair Theatre Inc. 332
SCRA 139; Banquerigo vs. CA GR 164633 August 7, 2006).
Q: What are the conditions for compulsory execution?

A: The following are the conditions:
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 Corp. vs. CA 379 SCRA 159).
FIRST CONDITION: If a judgment has disposed already of the

action or proceeding then it can be executed ;
2)
SECOND CONDITION: The period to appeal has expired and no

appeal has been filed/taken from the judgment.
Under the first condition, if a judgment has disposed already of the

action or proceeding then it can be executed because if the
judgment or order has not yet disposed of the action or
proceeding, that is called an interlocutory judgment or order.
Essential requisites of a writ of execution

1)
1)
It must conform strictly to the decision or judgment

which gives it life; and
353

One of the effects of finality of a judgment under Rule 36 is that the

prevailing party is entitled to have the judgment executed as a
matter of right. And it is the ministerial duty of the court to
execute its own judgment. So once the judgment has become final,
all that the winner or prevailing party has to do is to file an action
in court for execution, the court has to issue.
judgment has become final, the winning party be not, through a

mere subterfuge, deprived of the fruits of the verdict. Courts must
therefore guard against any scheme calculated to bring about that
result. Constituted as they are to put an end to controversies,
courts should frown upon any attempt to prolong them.
GENERAL RULE: Judgment is enforceable by execution once it
becomes final and executory.
When the law says it is a matter of right upon a judgment or order

that disposes the action or proceeding, it means that after the
judgment was rendered, there is nothing more for the court to do
because its job is over. Therefore, if there is something more that
the court can do, as a rule, you cannot execute. That is why
conditional judgments, incomplete judgments cannot be executed.
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)

1)
2)
Under the second condition, we must wait for the period to appeal
to expire before we can move for execution. So, if the period to
appeal has not yet expired, then we cannot execute the judgment.
3)
4)
Once a judgment becomes final and executory, the prevailing party

can have it executed as a matter of right, and the issuance of a writ
of execution becomes the ministerial duty of the court (Buaya vs.
Stronghold Insurance Co., Inc. 342 SCRA 576). 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 vs. Paredes GR 157866 February 14, 2007).
5)
6)
7)
When there has been a change in the situation of the

parties, which makes the execution inequitable;
When it appears that the controversy has never been
submitted to the judgment of the court;
When the judgment was novated by subsequent
agreement of the parties;
When it appears that the writ of execution has been
improvidently issued;
When the writ of execution is defective in substance;
When the writ of execution is issued against the wrong
party; and
When the judgment debt has been paid or otherwise
satisfied.
[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION OF THE

PARTIES WHICH MAKE THE EXECUTION INEQUITABLE
(Supervening Fact Doctrine)
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 of Maria Manuel Vda. De Biascan 374
SCRA621). Its finality becomes a fact when the reglementary period
for appeal lapses, and no appeal is perfected within such period
(Vlason Enterprises vs. CAS 310 SCRA 26).
Q: May the court refuse to execute a judgment on the ground that
the judgement was wrong or erroneous?
One of the most important exceptions is the first one: When there
has been a change in the situation of the parties which make the
execution inequitable. Meaning, from the time na nagkaroon ng
final judgment up to the present, there has been a change in the
situation of the parties so that if we will execute, the judgment
becomes inequitable already. So, this is just another way of saying
that there has been a SUPERVENING EVENT that happened which
makes execution inequitable.
A: NO, because it is a matter of and the issuance of the

corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which is
compellable by mandamus. (Ebero vs. Caizares, 79 Phil. 152) The
principle is: No matter how erroneous a judgment may be, so long
as the lower court had jurisdiction over the parties and the subject
matter in litigation, (in short the judgment is valid), the said
judgment is enforceable by execution once it becomes final and
executory. The error also becomes final. If it is erroneous, the
remedy is to appeal, otherwise the error becomes final as well.
EXAMPLE: There was a case where A filed a case to eject B from his
property and B lost the case and there was a judgment ordering
him to vacate the property of A. But while the case was going on, A
mortgaged his property to the bank. In the meantime, he failed to
pay his loan and the bank foreclosed the mortgage. So the property
was sold at public auction. And at the auction sale, B, the one
occupying it, bought the property. The owner now is B. But there is
a final judgment ejecting him. Now, shall we insist on the judgment
ejecting B? No because B is now the owner. The fact that B became
the owner is a supervening event.
In execution, if you are not careful, there are lawyers who are very
good in thwarting an execution where a series of maneuvers are
utilized - we can still be delayed by questioning this and that and
sometimes courts are unwitting accomplices. That is why in the
1994 of
PHIL. VETERANS BANK (PVB) vs. IAC 178 SCRA 645

NOTE: There was a time before that the PVB was closed for 5 to 6
years because I think they have some problems. So the Central
Bank has to take over. The Central Bank has ordered to stop the
operation placed under receivership, the Central Bank will
control. Now under the Central Bank Law, once the Central Bank
takes over the control of a private bank, all its assets has to be
preserved. No assets will be sold or disposed of.
PELAYO vs. CA 230 SCRA 606

HELD: We have time and again ruled that courts should never
allow themselves to be a party to maneuvers intended to delay the
execution of final decisions. They must nip in the bud any dilatory
maneuver calculated to defeat or frustrate the ends of justice, fair
play and prompt implementation of final and executory judgment.
Litigation must end and terminate sometime and somewhere, and
it is essential to an effective administration of justice that once a
FACTS: There was somebody who sued PVB, and PVB lost. So there
was a judgment which became final. And the winner asked the
court to execute. Practically, you have to levy on the property of
the bank. In the meantime, the PVB was placed under receivership,
354

where under the law, it cannot be disposed of because it is under

the control of the Central Bank.
emphasize, applies only to cases where the facts or circumstances

authorizing such modification or alteration transpired after the
judgment has become final executory.
ISSUE: Can the prevailing party insist on the enforcement of the

judgment and get and levy the property of the PVB?
[3] WHEN THE JUDGMENT WAS NOVATED BY SUBSEQUENT

AGREEMENT.
HELD: NO. The placement of the bank under receivership is a

SUPERVENING EVENT. Once a decision has become final and
executory, it is the ministerial duty of the court to order its
execution, admits certain exceptions. The fact that petitioner is
placed under receivership is a supervening event that renders a
judgment notwithstanding its finality unenforceable by attachment
or execution.
QUESTION: Can the parties enter into a compromise agreement

when there is already a decision?
ANSWER: YES. Compromise agreement is welcome anytime
before the case is filed, while the case is going on, while the case is
on appeal.
SAMPAGUITA GARMENTS CORP. vs. NLRC 233 SCRA 260
Q: Now suppose there is a decision in my favor against you and

then you approach me and say, Pwede ba pag-usapan na lang
natin ito? Sige okay. Then we arrive at another agreement which
we signed, where the agreement is different from the decision in
my favor. Can it be done?
FACT: An employee was terminated by his employer on the ground

of theft. He stole company property. The management filed also a
case of theft against the employee. But in the meantime the
employee also filed a labor case against the employer for illegal
dismissal and prayed for reinstatement with back wages. After
hearing, the NLRC ruled that there was illegal termination and
ordered the reinstatement of the employee and payment of
backwages. The NLRC decision became final. In the meantime, the
accused was convicted in the criminal case for theft and ordered to
go to prison.
A: Yes, I can waive my rights under the judgment. There is now a

new agreement between us.
Q: Can I execute on the original judgment?
A: No more, because the new agreement novated the judgment.
Take note that in case of novation, the new obligation must be
totally incompatible with the first obligation.
ISSUE: What happens now to the final judgment of the NLRC

reinstating the employee?
A related question:
HELD: An employees conviction for theft, which was affirmed by
the RTC and the CA, is a SUPERVENING CAUSE that renders unjust
and inequitable the NLRC decision mandating the employees
reinstatement with backwages.
Q: Can one court by injunction or restraining order stop the

execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to interference.
EXCEPTIONS: (when the enforcement of a final judgment may be
stopped by way of injunction)
Take note however that for the supervening event to apply, the
supervening event must happen after the judgment has become
final and executory. Not that the supervening event happened
while the case was going on. If the case is going on and something
happened which you believe would make the decision against you
unfair, your duty is to bring it to the attention of the court so that
the court deciding the case would take that into consideration. In
the case of
1.)
Rule 38, Section 5:

Rule 38, Section 5: Preliminary injunction
pending proceedings. The court in which the
petition is filed, may grant such preliminary
injunction as may be necessary for the
preservation of the rights of the parties, upon
the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the
petition is dismissed or the petitioner fails on
the trial of the case upon the merits, he will
pay the adverse party all damages and costs
that may be awarded to him by reason of the
issuance of such injunction or the other
proceedings following the petition; but such
injunction shall not operate to discharge or
extinguish any lien which the adverse party
may have acquired upon the property of the
petitioner.
VALENZONA vs. CA 226 SCRA 36

HELD: While the rule is that a stay of execution of a final judgment
may be authorized if necessary to accomplish the ends of justice, as
for instance, where there has been a change in the situation of the
parties which makes such execution inequitable, nevertheless the
said rule cannot be invoked when the supposed change in the
circumstances of the parties took place while the case was pending,
for the reason that there was then no excuse for not bringing to the
attention of the court the fact or circumstance that affects the
outcome of the case.
The ruling in VALENZOLA was reiterated in
ABOITIZ vs. TRAJANO 278 SCRA 387 [1997]
In effect, there is a final and executory judgment but the

court will issue an injunction to stop this enforcement
because of the pendency of a petition for relief from
judgment.
HELD: We are of course well aware of the rule authorizing the

court to modify or alter a judgment even after the same has
become executory, whenever circumstances transpire rendering
its execution unjust and inequitable. However, this rule, we must
355

2.)
When there is an action for annulment of judgment of

the RTC filed in the CA.
But sometimes, it takes months for the CA to return the records.

That is the trouble with the CA. It takes them several months, when
the case is appealed, before they tell you that the record is here.
The CA may issue a writ of preliminary

injunction annulment of judgment,
certiorari, or prohibition cases where the CA
will issue a preliminary injunction to stop the
RTC from enforcing its judgment pending the
resolution of whether its judgment was
rendered in excess or without jurisdictionannulment of judgement, certiorari, or
prohibition cases where the CA will issue a
preliminary injunction to stop the RTC from
enforcing its judgement pending the
resolution of whether its judgement was
rendered in excess or without jurisdiction.
In the PRESENT rules, this is taken from the SC Circular 24-94 which
took effect in 1994, hindi na kailangan hintayin ang records na
bumalik dito. Just get a certified copy of the CA decision, get a copy
of the entry of final judgment of the CA. You just attach a copy of
the CA judgment and a certificate from the CA clerk of court that it
is already final and executory - meaning, that there is already entry
of final judgment. This is much faster than waiting for the records
to be returned.
The first paragraph in Section 1 normally deals with judgment
usually becoming final and executory in the RTC. The rest of the
paragraph deals with appeal which affirmed the decision of the
RTC. So that is the procedure for execution both cases, execution
is a matter of right because judgment is final and executory.
So, those are the exceptions.

SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
The alternative which is the last paragraph, in the interest of

justice, you can file also your motion for execution in the CA and
the CA will direct the RTC to issue the writ of execution.
Q: Is there any other instances where a judgement maybe executed

as a matter of right?

THIRD INSTANCE: CASES UNDER SECTION 4
A: YES, when the losing party appealed the RTC decision to the CA
and the CA affirmed the decision of the RTC. Kung may appeal, the
judgment is not final, you cannot execute. The case is now in the
CA, the CA decided in your favor, the RTC judgment was affirmed
and the CA decision has also become final and executory. So you
can now execute.
Q: Is there another instance when execution becomes a matter of

right?
A: This is the third instance found in Section 4:
Sec. 4. Judgments not stayed by appeal. Judgments in action for injunction,
receivership, accounting and support, and
such other judgments as are now or may
hereafter be declared to be immediately
executory, shall be enforceable after their
rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise
ordered by the trial court. On appeal
therefrom, the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting, or award
of support.
Q: How do you execute in that situation?

A: That is now covered by the second and third paragraphs of
Section 1:
be applied for in the court of origin, on
the writ of execution.
The stay of execution shall be upon such

terms as to bond or otherwise as may be
considered proper for the security or
protection of the rights of the adverse party.
(4a)
Now the usual procedure no, when you win in the RTC and the
losing party appeals, the records of the case will be brought to the
CA. Later, there will be a CA decision: The judgment of the RTC of
Davao City is affirmed in toto. Now you have to wait for the CA
judgment to become final because that may be appealed further to
the SC. If the judgment becomes final, the clerk of court will make
an entry of final judgment of the CA decision. Normally after that,
the records from the CA will be returned to Davao. It will be sent
back to the court of origin. Once the record is back, the RTC is
supposed to tell you, the records are here. That is the time you file
a motion for execution. You will file it in the RTC.
GENERAL RULE: If there is an appeal, the judgment will be stayed.

EXCEPTIONS (Under Section 4): Judgments in actions for injunction,
receivership, accounting, support, judgment declared to be
immediately executory.
So, actions for injunction, receivership, accounting, support. So for
example: theres an injunction from the court: The defendant is
enjoined from trespassing on plaintiffs land. Then you appealed.
So, the decision is not final. Now, if the judgment is not yet final,
what will you do in the meantime. So, youll say; Ill just continue
to trespass because anyway the judgment is not yet final. Ah hindi
356

yan pwede. Even if the judgment is not yet final, even if it is on

appeal, you have to honor the injunction. So, in effect, it is a matter
of right.
the case and is in the possession of either the

original record or the record on appeal, as the
case may be, at the time of the filing of such
motion, said court may, in its discretion,
order the execution of a judgment or final
order even before the expiration of the
period to appeal.
Example: An order directing you to render an accounting. Take the

case of recovery of possession of land with accounting of the
income that you received. After trial, Okey, Defendant, you turn
over the possession of the property to the plaintiff and you render
an accounting. Appeal ka. Pag appeal mo, there must be an
accounting in the meantime.
After the trial court has lost jurisdiction, the

motion for execution pending appeal may be
filed in the appellate court.
So, if there is a judgment for an action for support, you must

comply with the judgment even before it becomes final. So, the
amendment now includes support and this phrase, such other
judgments as are now or may hereafter be declared to be
immediately executory. Any judgment which is declared by law to
be immediately executory has to be enforced even before it
becomes final and executory even if there is an appeal.
Discretionary execution may only issue upon

good reasons to be stated in a special order
after due hearing.
(b) Execution of several, separate or partial
judgments. - A several, separate or partial
judgment or final order pending appeal.
Q: Give an example of a law which declares a judgement to be

immediately executory?
A: The best example would be the Summary Procedure where a
decision of the MTC in a civil case is appealed to the RTC, the
decision of the RTC is immediately executory even if we go to the
CA. It has to be executed unless the appellate court will stop the
execution in the meantime.
Well now go to the second type of execution - discretionary or

execution pending appeal. Discretionary, meaning, the court may
or may not order the execution.
Here, the prevailing party files a motion for execution
within the 15 days period. So in other words, the
judgment is not yet final and executory, normally,
within the period to appeal.

FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL
DETAINER CASES
Q: Normally, can you file a motion for execution within

the period to appeal?
Q: Is there another instance when execution becomes a matter of

right?
A: As a rule, you cannot because it is not yet final. But

by EXCEPTION, Section 2 allows you, provided,
according to the last paragraph, discretionary execution
may only issue upon good reason to be stated in the
special order after due hearing.
A: YES, under Rule 70 a judgment of the MTC in a forcible entry or

unlawful detainer case is immediately executory (i.e. subject to
immediate execution) even if it is not yet final and executory.
TO SUMMARIZE:
Q: Therefore, what are the requisites for discretionary execution?

Q: When is execution a matter of right?
A: The following are the requisites for discretionary execution:
A: In the following:
1)
1)
2)
3)
4)
Section 1, paragraph 1 no appeal; judgment becomes

final;
Section 1, paragraph 2 there is an appeal; once the CA
judgment becomes final;
Section 4 Judgment in an action for injunction,
receivership, accounting, support, judgment declared to
be immediately executory; and
Rule 70 Judgments in Forcible Entry and Unlawful
Detainer cases.
2)
3)
4)
There must be a motion filed by the prevailing party with

notice to the adverse party;
There must be a hearing of the motion;
There must be good reasons to justify the discretionary
execution; and
The good reasons to execute must be stated in a special
order after due hearing (Mancenido vs. CA 330 SCRA 419;
Geolistics Inc. vs. Cateway Electronics, GR 174256-57,
March 25, 2009).
Why discretionary? Because the court may or may not grant the
execution depending on whether there is a good reason or no good
reason. Unlike in Section 1, when the judgment has become final
and executory, you do not have to cite any good reason. The only
reason for the execution is that the judgment becomes final and
executory. But in the case of execution pending appeal, you must
justify it the party must convince the court to grant the
execution. And remember according to the SC, execution under
Section 2 is not the general rule, that is the exception.
DISCRETIONARY EXECUTION
(Execution pending appeal)
Section 2. Discretionary execution.
(a) Execution of a judgment or final order
pending appeal. On motion of the prevailing
party with notice to the adverse party filed in
the trial court while it has jurisdiction over
357

The requirement of good reason is important and must not be

overlooked, because if the judgment is executed and, on appeal,
the same is reversed, although there are provisions for restitution,
oftentimes damages may arise which cannot be fully compensated.
Accordingly, execution should be granted only when these
considerations are clearly outweighed by superior circumstances
demanding urgency, and the above provision requires a statement
of those circumstances as a security for their existence. (City of
Bacolod vs. Enriquez, 101 Phil. 644)
appeal. If we will wait for the judgment to become final,

by that time the judgment will become ineffectual.
2)
OLD AGE; There was a case an old woman files a case

against somebody to recover her land from the
defendant which the latter has deprived her of the
property for years. The defendant enjoyed the property
and the fruits. After years of litigation she won, she was
about 80. And then mag-aappeal pa yong kalaban. The
old woman filed a motion in court asking for immediate
execution even if the judgment is not yet final on the
argument that I have been deprived for years of the
possession and of the property; and there is a probable
appeal which may take another couple of years. By the
time I win the case on appeal, I may already be dead. I
have not enjoyed the property and the fruits. The SC
said, all right that is a good reason.
3)
Where the appeal is for the purpose of DELAY;
It is even a misnomer execution pending appeal. For all you know,

the losing party may or may not appeal. It is actually called
execution pending appeal because you are filing the motion within
the period to appeal.
Q: What will happen if there are no good reasons?
A: The writ of execution is void because it does not state why you
are executing a judgment. (AFWU vs. Estipona, L-17934, Dec. 28,
1961) And remember that execution pending appeal is the
exception rather than the rule. And there is a possibility that the
judgment in your favor will be reversed on appeal.
Q: How about the argument that the intended appeal is

dilatory? It is only intended to prolong the supposed
execution and therefore the losing party has a chance to
win the appeal. Is that a good ground for execution
pending appeal ?
Q: Suppose we will execute the judgment pending appeal and the

appeal will proceed then it will be reversed, what will happen
then?
A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300)

and JAVELLANA vs. QUERUBIN (July 30, 1966) the SC said
that, that is a good reason when the appeal is
interposed for delay.
A: If that happens, then there is Section 5 eh di, magsaulian tayo

if it is reversed totally, partially, or annulled on appeal or
otherwise. There will be MUTUAL RESTITUTION. That is the remedy
under Section 5. But the trouble is ang hirap man ng saulian, eh.
There could not be a 100% perfect restitution. That is the same
asking the question, how can you unscramble an unscrambled egg?
This is one reason why execution pending appeal is not favored.
However, in the case of AQUINO vs. SANTIAGO (161

SCRA 570) the SC said that it is not a ground because it is
as if the trial court is already acting like the CA. It is only
the CA which has the power to claim that the appeal is
without merit. Thats another reasoning.
Section 5. Effect of reversal of executed

judgment. - Where the executed judgment is
reversed totally or partially, or annulled, on
appeal or otherwise, the trial court, may, on
motion, issue such orders and justice may
warrant under the circumstances (5a)
But in the case of HOME INSURANCE CO. vs. CA (184

SCRA 318), the SC ruled that, that would be a good
reason again specially that there are many factors to
show the inequity of not executing the judgment
immediately (if coupled with other reason). Thats why in
the case of
Q: Give examples of GOOD REASONS which would justify execution

pending appeal.
HOME INSURANCE CO. vs. CA 184 SCRA 318

A: Following are example of good reasons:
1)
HELD: A good and sufficient reason upon which to issue

execution of the judgment pending appeal is when the
appeal is being taken for the purpose of delay. While it is
true that it is not for the trial court to say that the appeal
may not prosper or that it is frivolous [so, the SC is aware
of these pronouncements], there are circumstances
which may serve as cogent bases for arriving at such a
conclusion. Dean I: An example where the trial court
maybe justified in saying that the appeal is dilatory is in
default judgements where there is no evidence for the
defendant. And then the defendant appeals. Now what
is the chance of reversal when all the evidence is for the
plaintiff? The possibility that the judgment will be
reversed is almost zero (0). Therefore the court can rule
that the appeal is dilatory and then order the execution
of the judgment pending appeal upon motion of the
plaintiff.
When there is danger of the judgment becoming

INEFFECTUAL. (Scottish Union vs. Macadaeg, 91 Phil.
891);
In this case of MACADAEG, the plaintiff sued a foreign
corporation doing business in the Philippines. So it has
assets no? The plaintiff sued the foreign company and he
won, there was award, but hindi pa final. In the
meantime, plaintiff learned the foreign company is going
to stop completely its business in the Philippines and
they are going to send back all their assets abroad. Sabi
ng na plaintiff: Aba delikado ako. Suppose after the
appeal, I still win and I will start running after the
defendant na wala naman dito. It has no more office, no
operations, no assets; but in the meantime meron pa?
So the plaintiff filed a motion for execution pending
358

The SC continues: Another vital factor which led trial

court to allow execution pending appeal was the
pendency of the case for more than 17 years so that the
purchasing power of the peso has undeniably declined.
Petitioner should be given relief before it is too late.
He says; Alright, I am asking for an order pending

appeal. I will put up a bond to answer for any damages
that the defendant may suffer in the event that he wins
the appeal.
A: In the old case of HACIENDA NAVARRA vs. LABRADOR
(65 Phil 635), the SC simply implied that there is a good
ground. HOWEVER, the SC denied that implication in
later cases. Among which were the cases of ROXAS vs.
CA (157 SCRA 370) and PNB vs. PUNO, (170 SCRA 229)
and PHOTOQUICK INC. vs. LAPENA, JR. (195 SCRA 66).
Where the sole reason given by the trial court in disallowing an

appeal 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 vs. Court of Appeals, 309 SCRA 474) Mere
allegation that the appeal is dilatory is not a good reason to merit
discretionary execution (Intramuros Tennis Club, Inc. vs. CA 341
SCRA 90).
PNB vs. PUNO 170 SCRA 229

HELD: The mere filing of a bond would not entitle the
prevailing party to an execution pending appeal.
Whatever doubts may have been generated by early
decisions involving this matter, starting with Hacienda
Navarra, Inc. vs. Labrador, et al., have been clarified in
Roxas vs. Court of Appeals, et al.
In Sangkay vs. NPC GR 141447 May 4, 2006, the Court stressed that
the trial court is not justified to order the 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 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.
4)
To consider the mere posting of a bond a good reason

would precisely make immediate 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 the damages that might result
therefrom. This is a situation, to repeat, neither
contemplated nor intended by law.
Financial distress is also not in itself a good reason to

justify execution pending appeal (Intraamuros Tennis
Club, Inc. vs. CA, supra)
PB COM. vs. CA 279 SCRA 364 [Sept. 23, 1997]
So, we might say that the posting of a bond would be an

ADDITIONAL GOOD REASON but it is NOT BY ITSELF a
good reason. So, the case of HACIENDA NAVARRA VS.
LABRADOR has been misinterpreted.
HELD: It is significant to stress that private respondent

Falcon is a juridical entity and not a natural person. Even
assuming that it was indeed in financial distress and on
the verge of facing civil or even criminal suits, the
immediate execution of a judgment in its favor pending
appeal cannot be justified as Falcon's situation may not
be likened to a case of a natural person who may be ill or
may be of advanced age.
The second paragraph of Section 2 [a]:

Even the danger of extinction of the corporation will not

per se justify a discretionary execution unless there are
showings of other good reasons, such as for instance,
impending insolvency of the adverse party or the appeal
being patently dilatory. Hence, it is not within
competence of the trial court, in resolving a motion for
execution pending appeal, to rule that the appeal is
patently dilatory and rely on the same as its basis for
finding good reason to grant the motion. Only an
appellate court can appreciate the dilatory intent of an
appeal as an additional good reason in upholding an
order for execution pending appeal which may have
been issued by the trial court for other good reasons, or
in cases where the motion for execution pending appeal
is filed with the appellate court in accordance with
Section 2, paragraph (a), Rule 39 of the 1997 Rules of
Court.
5)
Q: Where can you file your motion for execution pending appeal?
A: It DEPENDS:
1)
TRIAL COURT - while it has jurisdiction over the case and

the court is still in possession of the records of the case.
Meaning:
a)
b)
2)
the judgment has not yet become final - it is still

within the 15 day period, and
the court still is in possession of the records of the
case.
APPELLATE COURT after the trial court has already lost

jurisdiction, the motion for execution pending appeal
may already be filed in the appellate court.
So, if the RTC has no more jurisdiction, then doon ka na mag-file ng

motion sa CA.
When the successful party files a BOND;

Q: Here is a controversial question: How about an
instance when the winning party offers to put up a bond.
Q: When will the court lose jurisdiction over the case ?
359

A: With regard to execution pending appeal, you can correlate this

with RULE 41, SECTION 9 , to wit:
them, leaving the action to proceed against

the others. (4)
Rule 41, Section 9. Perfection of appeal; effect

thereof. - A partys appeal by notice of appeal
is deemed perfected as to him upon the filing
of the notice of appeal in due time.
RULE 36, Sec. 5.

Separate judgments. When more than one claim for relief is
presented in an action, the court, at any
stage, upon a determination of the issues
material to a particular claim and all
counterclaims arising out of the transaction
or occurrence which is the subject matter of
the claim, may render a separate judgment
disposing of such claim. The judgment shall
terminate the action with respect to the
claim so disposed of and the action shall
proceed as to the remaining claims. In case a
separate judgment is rendered, the court by
order may stay its enforcement until the
rendition of a subsequent judgment or
judgments and may prescribe such conditions
as may be necessary to secure the benefit
thereof to the party in whose favor the
judgment is rendered. (5a)
A partys appeal by record on appeal is

deemed perfected as to his with respect to
the subject matter thereof upon approval of
the record of appeal filed in due time.
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection
of the appeals filed in due time and the
expiration of the time to appeal of the other
parties.
In appeals by record on appeal, the court
loses jurisdiction only over the subject matter
thereof upon the approval of the records on
appeal filed in due time and the expiration of
the time to appeal of the other parties.
RULE 37, Sec. 8. Effect of order for partial new

trial. - When less than all of the issues are
ordered retried, the court may either enter a
judgment or final order as to the rest, or stay
the enforcement of such judgment or final
order until after the new trial. (7a)
In either case, prior to the transmittal of the

original record of the record on appeal, the
court may issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated by
the appeal, approve compromises, permit
appeals of indigent litigants, order execution
pending appeal in accordance with Section 2
of Rule 39, and allow withdrawal of the
appeal. (9a)
Q: Can there be two or more judgments arising out of one case?

A: YES. (Rule 36, Sections 4 and 5)
Q: Can the first judgment be immediately executed while waiting
for rendition of the second judgment?
The phrase order execution pending appeal in accordance with

Section 2 of Rule 39 was not there in the Old Rules. Now, that has
been added and it jives with Section 2 paragraph (a). Now, for as
long as the motion is filed, before the court loses jurisdiction and
provided that the records are still with the trial court , even if the
appeal is subsequently perfected, it can still act on the motion for
execution pending appeal.
A: Generally, the court will decide. If the court agrees, there has to
be a good reason.
There is one interesting case on execution pending appeal the
case of
RCPI vs. LANTIN 134 SCRA 395
Now, let us go back to Section 2, Rule 39 on execution of several,

separate or partial judgments meaning, there are several
judgments arising from the same case:
FACTS: The case of Lantin was an action for damages. The court
awarded the plaintiff said damages. So, the plaintiff moved for
discretionary execution.
Rule 39, Section 2 [b]:

ISSUE: Whether or not execution pending appeal is proper in a
judgment for damages.
b) Execution of several, separate or partial

judgments. - A several, separate or partial
judgment or final order pending appeal. (2a)
HELD: The execution pending appeal may be proper for enforcing

the collection of ACTUAL DAMAGES, but it is not proper to enforce
the payment of moral or exemplary damages. So, this is where the
SC distinguished.
Let us correlate this provision with Rule 36, Sections 4 and 5 AND
Rule 37, section 8:
Why is it that execution pending appeal is proper for the collection

of actual damages? In actual or compensatory damages, the
amount is certain. Normally, there are receipts. The amount is
based on evidence.
RULE 36, Sec. 4. Several judgments. - In an

action against several defendants, the court
may, when a several judgment is proper,
render judgment against one or more of
360

But the award for moral or exemplary damages is uncertain and

indefinite. It is based on abstract factors like sleepless nights,
besmirched reputation. It is hard to quantify it based on evidence.
order may be executed on motion within five

(5) years from the date of its entry. After the
lapse of such time, and before it is barred by
the statute of limitations, a judgment may be
enforced by action. The revived judgment
may also be enforced by motion within five
(5) years from the date of its entry and
thereafter by action before it is barred by the
statute of limitations. (6a)
The SC said, in many cases the trial court awards a huge amount for
exemplary damages but on appeal, the CA refused to award or
totally eliminate the award. So, if the award of moral or exemplary
damages is not certain or fixed, the execution pending appeal may
not be proper to enforce its execution.
Sec. 3. Stay of discretionary execution. Discretionary execution issued under the
preceding section may be stayed upon
approval by the proper court of a sufficient
supersedeas bond filed by the party against
whom it is directed, conditioned upon the
performance of the judgment or order
allowed to be executed in case it shall be
finally sustained in whole or in part. The
bond thus given may be proceeded against
on motion with notice to the surety. (3a)
Q: How do you execute a judgment?

A: You file a motion for execution before the same court which
rendered the judgment.
Q: How is the execution enforced?
A: There are two 2 modes under Section 6:
Q: Now, assuming that there is an execution pending appeal in

favor of the plaintiff under Section 2 and I am the defendant, is
there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now ask
the court to fix a supersedeas bond to stop the execution pending
appeal. The bond will answer for any damages that the plaintiff
may suffer if the defendants appeal is not meritorious.
1)
Execution by motion within five (5) years from the date

of its entry; and
2)
Execution by independent action if the five year period

to execute by motion has elapsed with no motion having
been filed and before it is barred by the statute of
limitations..
Execution BY MOTION means that the prevailing party shall ask the
court to issue a writ of execution by simply filing a motion in the
same case.
And once the supersedeas bond is filed, the court has to withdraw
the execution pending appeal. Supersedeas bond under Section 3 is
conditioned upon the performance of the judgment or order
allowed to be executed in case it shall be finally sustained in whole
or in part.
EXAMPLE: I am the plaintiff and I have a judgment here against the

defendant. I do not know of any assets of the defendant because
the defendant for the meantime is as poor as a rat. But after a
certain period of time he becomes a wealthy man. All I have to do
is to file a motion and the court will order the execution, provided
the motion is filed within 5 years from the date of the entry of
judgment. The date of the entry of judgment and the date of
finality are the same (Rule 36, Section 2).
GENERAL RULE: When a defendant puts up a supersedeas bond,

the court shall recall the execution pending appeal because
discretionary execution is the exception rather than the general
rule.
Lifetime of a writ of execution
EXCEPTION: Notwithstanding the filing of the supersedeas bond by

the appellant, execution pending appeal may still be granted by the
court IF THERE ARE SPECIAL AND COMPELLING REASONS justifying
the same outweighing the security offered by the supersedeas
bond. (De Leon vs. Soriano, 95 Phil. 806)
The writ shall continue in effect during the period within which the
judgment may be enforced by motion (Sec. 14). Hence, the writ is
enforceable within the five-year period from entry of judgment as
provided for in Sec. 6 because within that period, the writ may be
enforced by motion. This is an amendment to the old rule (Sec. 11 R
39) which provided that the lifetime of the writ was 60 days from
the receipt of the writ by the officer required to enforce it.
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may

be executed pending appeal even notwithstanding the filing of a
supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil.
806) Support is something which should not be delayed. What is
the use of the supersedeas bond when the need of the plaintiff is
today and not 5 or 6 weeks from now?
Q: Suppose the defendant becomes rich after 5 years, can I still file
a motion to execute?
A: No more, because execution by motion must be filed within 5
years only from the date of its entry. If the judgment was not
executed within the 5-year period, the judgment has become
dormant.
Alright, let us go to the next important classification of execution.

The other classification as to the manner of enforcement could be
by MOTION or by INDEPENDENT ACTION.
A writ of execution issued by motion of the prevailing party after

five (5) years from the date of entry of the judgment is null and
void. There is then a need for the prevailing party to file an
independent action for the revival of the judgment before the
action is barred by the statute of limitations (Tag Fibers, Inc. vs.
NLRC 344 SCRA 29; Terry vs. People 314 SCRA 669).
EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by independent
action. - A final and executory judgment or
361

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 (Govt. vs Echaus 71
Phil. 318; Quiambao vs. Manila Motor Co., 3 SCRA 444). The sale
must however, be made within ten years during which the
judgment can be enforced (Ansaldo vs. Fidelity & Surety Company,
84 Phil. 547; Jalandoni vs. PNB 108 SCRA 102).
date of its entry and thereafter by action also before it is barred by

the statute of limitations (Sec. 6).
Revived judgment a new judgment
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 limitation. 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 old, original judgment (PNB vs. Bondoc 14
SCRA 770).
Q: What is a dormant judgment?

A: A DORMANT judgment is one that was not executed within 5
years.
While this ruling was abandoned in PNB vs. Deloso 23 SCRA 266
and Luzon Surety Co. Inc. vs. IAC GR 72645 June 30, 1987, which
held that the ten-year period should run from the finality of the
original judgment and not from the finality of the revived
judgment, the ruling in Bondoc was resurrected in the present
provision of Section 6 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.
Revival of Judgment
Q: So, how can that (dormant) judgment be awaken?
A: The procedure is to file another civil action. A civil action for
revival of judgment. That is what you call EXECUTION BY
INDEPENDENT ACTION which must be filed before it is barred by
the statute of limitations. The second sentence states, after the
lapse of such time (which is 5 years) and before it is barred by the
statute of limitations, a judgment may be enforced by action.
The SC 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
(Compana General de Tobacos vs. Martinez and Nolan 29 Phil. 515;
Aldeguer vs. Gemelo 68 Phil. 421).
Q: When will it be barred by the statute of limitations ?

A: According to Article 1144 of the New Civil Code, the judgment
may be enforced only within ten (10) years.
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 the complaint in a regular
court within ten years from the time the judgment became final
(Bausa vs. Heirs of Juan Dino GR 167281 August 28, 2008).
The ten-year period commences to run from the finality of the

judgment which is the period within which the judgment can be
enforced (Art. 1152 in relation to Art. 1144[3], Civil Code). Because
under the Rules, the date of the finality of the judgment or final
order shall be deemed to be the date of entry (Sec. 2 R 36) the
period shall run also from the date of entry of the judgment.
Action for Revival not to reopen any issue affecting the merits of
the judgment
An action for revival of judgment presupposes that the same can

no longer be enforced by mere motion. This means that from the
date of the finality of the judgment no motion was filed for the
execution of said judgment, thus, the need for its enforcement by
action.
An action for revival of judgment is not intended to reopen any

issue affecting the merits of the judgment debtors case nor the
propriety or the correctness of the first judgment. It is a new and
independent action 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 (Juco vs. Heirs of Tomas Siy
Chung Fu GR 150233 February 16, 2005; Saligumba vs. Palanog,
supra). It is an original action, not a mere incident of the primitive
suit or a mere auxiliary or supplemental remedy (Aldeguer vs.
Gemelo 68 Phil. 421).
The 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 (Saligumba vs.
Palanog GR 143365 December 4, 2008).
The action to revive a judgment must be filed within ten years from
the date the judgment becomes final because an action to enforce
a judgment prescribes in ten 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 the entry (Sec. 2 R 36), the
prescriptive period shall run from the date of entry of the
judgment.
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 (Caina vs. CA
GR 114393 Dec. 14 1994). GThe consideration of any issue affecting
matters that could have been raised in the previous case must be
deemed as definitely foreclosed (Phil. Reconstruction Corp. Inc. Vs.
Aparente 45 SCRA 217). It is not meant to retry the case all over
again (Enriquez vs. CA 372 SCRA 372).
When a judgment is revived under Section 6, such revived

judgment may also be enforced by motion within 5 years from the
362

Rianos comment:
When the five-year period to execute by motion may be

interrupted
If the action to revive a judgment (or an action upon a judgment is

according to Aldeguer vs. Gemelo a new cause of action and 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.
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. Delays attributable to the defendant have the effect of
suspending the running of the prescriptive period for the
enforcement of the judgment (Potenciano vs. Mariano 93 SCRA
463; Camacho vs. CA 287 SCRA 611; Republic vs. CA 260 SCRA 344).
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 RTC to revive
a judgment rendered by a MTC.
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. It has been held that in
computing the time limit for enforcing a final judgment, the general
rule is that the time when the 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 CA
and in the SC challenging the trial courts judgment as well as the
writ of execution. Such petitions suspended or interrupted the
further enforcement of the writ (Yau vs. Silverio GR 158848;
Macapagal vs. Gako GR 171994, February 4, 2008).
It is submitted that it is in this light that the 1957 case of

Torrefranca et al., vs. Albiso 102 Phil. 732 should be re-examined.
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 CFI was
dismissed and plaintiff went to the SC on a question of law
whether or not a justice of the peace has the authority to revive its
own judgment.
The SC ruled that the Judiciary Act of 1948 gave justice of 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 period may also be interrupted by the agreement of the parties

to suspend the enforcement of the judgment (Torralba vs. de los
Angeles 96 SCRA 69; Macias vs. Lim 431 SCRA 20).
The rationale of Torrefranca in sustaining the power of the court to

revive its own judgment is clearly predicated on the jurisdiction of
the trial court over the case of forcible entry. The ruling 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 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 vs. Benedicto 95
SCRA 137;
When 5 and 10 year periods do not apply
b)
This rationale 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.
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 vs. Benitez 127 SCRA
610).
Venue of revival of judgment action

Therefore, since the judgment will be enforced by motion for five
(5) years, then after the fifth year, it will be enforced by
independent action. So, I will start the civil action for revival of
judgment between or after the 5th year but before the 10th year.
So, that is what we have to remember.
In Infante vs. Aran Builders Inc. GR 156596, August 24, 2007, the
Court xplained 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
Q: Do you mean to tell me that I have to file the case all over again,
practically repeating what happened 5 years ago?
A: NO, because the judgment in the independent action is a
judgment reviving the first judgment.
For example, more than 5 years ago I sued you to collect on a
promissory note and you alleged payment, and you lost and the
court said that you are liable to me. On the seventh year when I
revived that judgment, my rights are no longer based or derived on
363

the promissory note but on such judgment. But you can still invoke
other defenses such as lack of jurisdiction, fraud. But you cannot
question the correctness of the original judgment because that is
already res adjudicata. You are entitled to put up any defense that
you have against me provided that you cannot question the
correctness of the original judgment. That is the rule.
And of course, because of those 2 conflicting cases, the court

resolved those issues in the case of LUZON SURETY CO. vs. IAC (151
SCRA 652) where the SC said, the later doctrine of VELOSO prevails.
So, with that ruling, the 10-year period applies only from the date
of the original judgment, but you cannot say that once it is revived,
you have another 10 years.
Q: Discuss briefly the nature of the action for enforcement of a

dormant judgment.
But now, you look at the new law: The revived judgment may also
be enforced by motion within five (5) years from the date of its
entry and thereafter by action before it is barred by the statute of
limitations. Ano yan? That is a revival of the BONDOC ruling!
Binalik yung original ruling which is, the revived judgment is good
for another 10 years.
A: The action for enforcement of a dormant judgment is an

ordinary civil action the object of which is two-fold, namely,
a)
b)
to revive the dormant judgment, and

to execute the judgment reviving it, if it grants the
plaintiff any relief.
So, I repeat, the last sentence has resurrected the ruling in the case
of PNB vs. BONDOC and superseded again LUZON vs. IAC. You are
entitled to another 10 years from the date of the revived judgment.
Hence, the rights of the judgment-creditor depend upon the

second judgment. Being an ordinary civil action, it is subject to all
defenses, objections and counterclaims which the judgment-debtor
may have except that no inquiry can be made as to the merits of
the first judgment. Therefore, defenses that do not go to the merits
of the first judgment, such as lack of jurisdiction, collusion, fraud,
or prescription, may be set up by the judgment-debtor. (Cia. Gral.
De Tabacos vs. Martinez, 17 Phil. 160; Salvante vs. Ubi Cruz, 88 Phil.
236) [Taken from Remedial Law Reviewer by Nuevas]
ILLUSTRATION:
Example: First judgment became final in 1990. You can enforce
that until 2000 by motion (1990-1995) or by independent action
(1995 2000). Suppose in 2000, you were able to secure a second
judgment reviving the first judgment, under the new rules, there is
another ten years. The first judgment by motion. The next 5 years
is by independent action. So, to illustrate:
Q: Give the exception to the rule on dormant judgment.

1990
A: The only exception is the judgment for support which does not
become dormant, nor does it prescribe. You can execute it anytime
even beyond the 5-year period and any unpaid installment may be
executed by motion. (Florendo vs. Organo, 90 Phil. 483) So, even if
the judgment is more than 5 years old, the defendant defaulted on
the seventh year, you just file a motion to collect that judgment.
1995
5yrs by
motion
5yrs by
Independent
Action
10 yrs
Art 1144, Civil Code
Q: Suppose the judgment was executed and the property of the

defendant was levied on the 4th year, and the next stage is the
auction sale.
2000
2005
5yrs by
motion
2010
5yrs by
Independent
Action
10yrs
last sentence of Sec 6
ARCENAS vs. CA 299 SCRA 733 (December 4, 1998)
A: The SC said the auction sale must also be WITHIN 10 years. So,
even if the property was levied, the auction sale must be within 10
years. Not only the levy of the property must be done within 10
years but also the including the auction sale, otherwise, any
auction sale done beyond 10 years in null and void.
HELD: The purpose of the action for revival of a judgment is not to

modify the original judgment subject of the action but is merely to
give a creditor a new right of enforcement from the date of
revival.
The rule seeks to protect judgment creditors from wily and
unscrupulous debtors who, in order to evade attachment or
execution, cunningly conceal their assets and wait until the statute
of limitation sets in.
Now, look at the last sentence in Section 6: 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.
Sec. 7. Execution in case of death of party. - In

case of the death of a party, execution may
issue or be enforced in the following manner:
For example, I have here a judgment nine (9) years ago. I want to
enforce it by action to revive judgment. You mean to tell me that
the revived judgment is good for another ten (10) years? Another 5
years for motion to a right of action and then I can still revive it
within 10 years?
(a)
In case of the death of the
judgment obligee, upon the application of his
executor or administrator, or successor in
interest;
(b)
judgment obligor, against his executor or
administrator or successor in interest, if the
judgment be for the recovery of real or
personal property, or the enforcement of a
lien thereon;
Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the
SC said that the period applies all over again from the finality of the
revived judgment. So, you have another ten (10) years. However,
this principle is abandoned in the later case of PNB vs. VELOSO (32
SCRA 266), the SC said that the original period is only computed
from the date of the original judgment.
364

(c)
judgment obligor, after execution is actually
levied upon any of his property, the same
may be sold for the satisfaction of the
judgment obligation, and the officer making
the sale shall account to the corresponding
executor or administrator for any surplus in
his hands. (7a)
Section 20. It shall be enforced in the manner provided for against

the estate.
Q: Suppose the defendant dies when there is already a levy. What
will happen?
A: The auction sale will proceed as scheduled in connection with
Section 7 [c] because the law says the same may be sold for the
satisfaction of the judgment obligation. Meaning, the auction sale
or the execution sale shall proceed as scheduled. No more
substitution here.
This is related to Rule 3, Section 20.

Q: What is the effect of a death of a party on the execution of a
judgment?
So that question, What is the effect of the death of a party on a

pending civil case is a question with so many angles anong
klaseng kaso?; is it one which is personal in nature or not?; if it is
not, is it one which survives or one which does not?; if it does not
survive, who died?; the plaintiff or the defendant? if it is the
defendant, did he die before entry of final judgment?; did he die
after entry of final judgment but before there could be levy or
execution?; or did he die after levy or execution? This last
question is answered by Section 7 [c].
A: The following:
1)
If it is the obligee (the creditor) will die after he wins the

case, his executor or administrator, his legal
representative or his heirs and successors in interest can
enforce the judgment. They will be the one to collect.
(paragraph [a])
2)
If it is the defendant (obligor) who dies and there is final

judgment which is recovery of real or personal property,
the judgment is executed against the administrator or
executor because this is an action which survives.
(paragraph [b]);
3)
Sec. 8. Issuance, form and contents of a writ of

execution. - The writ of execution shall:
(1)
issue in the name of the Republic
of the Philippines from the court which
granted the motion;
Under par. (c), it is the death of the obligor in a money

claim. This is related to Rule 3, Section 20. However, the
timing of the death is different. Let us connect these
with Rule 3, Sec. 20:
(2)
state the name of the court, the
case number and title, the dispositive part of
the subject judgment or order; and (3)
require the sheriff or other proper officer to
whom it is directed to enforce the writ
according to its terms, in the manner
hereinafter provided:
Sec. 20. Action on contractual money claims. When the action is for recovery of money
arising from contract, express or implied, and
the defendant dies before entry of final
judgment in the court in which the action was
pending at the time of such death, it shall not
be dismissed but shall instead be allowed to
continue until entry of final judgment. A
favorable judgment obtained by the plaintiff
therein shall be enforced in the manner
especially provided in these Rules for
(a)
If the execution be against the
property of the judgment obligor, to satisfy
the judgment, with interest, out of the real or
personal property of such judgment obligor;
(b) If it be against real or personal property in
the hands of personal representatives, heirs,
devisees, legatees, tenants, or trustees of the
judgment obligor, to satisfy the judgment,
with interest, out of such property;
So, for EXAMPLE: A filed a case against B to collect an unpaid loan.

What is the effect to the case if B dies? It will depend on what stage
of the case he dies. If he died before final judgment could be
rendered by the court (before entry of final judgment), there will
be a substitution of party and the case will continue until entry of
final judgment.
(c)
If it be for the sale of real or
personal property, to sell such property,
describing it, and apply the proceeds in
conformity with the judgment, the material
parts of which shall be recited in the writ of
execution.
Suppose, there is already entry of final judgment and he dies, it will

depend whether there was already a levy on execution. Meaning,
there was already entry of final judgment but before the property
is levied. This should not apply in Rule 39 because Section 7 [c]
states that after execution is levied.
(d)
If it be for the delivery of the
possession of real or personal property, to
deliver the possession of the same,
describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the
personal property of the person against
whom it was rendered, and if sufficient
But my question is no levy. The procedure there is found in the

Special Proceedings. The judgment shall be enforced in the
manner provided for by the Rules on claims against the estate of
the deceased under Rule 86. And that is also mentioned in Rule 3,
365

personal property cannot be found, then out

of the real property; and
(e)
In all cases, the writ of execution
shall specifically state the amount of the
interest, costs, damages, rents, or profits due
as of the date of the issuance of the writ,
aside from the principal obligation under the
judgment. For this purpose, the motion for
execution shall specify the amounts of the
foregoing reliefs sought by the movant. (8a)
The obligor can pay in cash, certified bank check payable to

the judgment obligee (creditor) or any other form of
payment acceptable to the latter. The payment shall go to
the obligee;
3)
The lawful fees shall be paid to the executing sheriff who

shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ.
This assumes that the obligee is present with sheriff. Suppose the
creditor is not around? Let us go to the second paragraph:
WRIT OF EXECUTION is actually the document which is issued by

the court addressed to the sheriff. The writ is actually the
instruction to the sheriff on what he should do. It would depend on
what kind of decision is it an action for sum of money or is it for
recovery of real property? Mimeographed iyan, addressed to the
sheriff. These are standard forms in court.
Section 9 [a], 2nd par. If the judgment

obligee or his authorized representative is
not present to receive payment, the
judgment obligor shall deliver the aforesaid
payment to the executing sheriff. The latter
shall turn over all the amounts coming into
his possession within the same day to the
clerk of court of the court that issued the
writ, or if the same is not practicable, deposit
said amounts to a fiduciary account in the
nearest government depository bank of the
Regional Trial Court of the locality.
Now, with respect to Section 8, the changes can be found in

paragraph [e] which mandates now that the writ of execution must
state the exact amount to be collected. That is why according to
the last sentence of paragraph [e], for this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought
by the movant.
If the plaintiff is not there, the payment is made to the sheriff and
he is supposed to endorse it to the clerk of court. The clerk of
court will look for the obligee to remit the money.
Normally, when lawyers file a motion to execute they will just

quote the principal, but they do not state the costs or interests.
Now, under the new rule, when you file the motion for execution,
you must also state how much is the costs or interests.
In the second sentence, this usually happens if the execution is to

be done outside of the locality. For example, the decision in Davao
will be enforced in Cotabato. So, the sheriff in Cotabato will be the
one to enforce and he will give the payment to the clerk of court
there who in turn will transmit the money to the clerk of court in
Davao. This is because the decision to be executed is one in Davao.
EXECUTION OF MONEY JUDGMENT

How do you execute judgment for money? Contractual
debts or damages. Example, the defendant is ordered to
pay defendant P1 million with interest, how does the
sheriff enforce that? Section 9 provides a detailed
explanation on how judgment for money is enforced.
Let us go over the first paragraph:
Let us go to the third paragraph:

The clerk of said court shall thereafter
arrange for the remittance of the deposit to
the account of the court that issued the writ
whose clerk of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment. The excess, if
any, shall be delivered to the judgment
obligor while the lawful fees shall be retained
by the clerk of court for disposition as
provided by law. In no case shall the
executing sheriff demand that any payment
by check be made payable to him.
Sec. 9.
Execution of judgments for money,
how enforced. (a) Immediate payment on demand. - The
officer shall enforce an execution of a
judgment for money by demanding from the
judgment obligor the immediate payment of
the full amount stated in the writ of
execution and all lawful fees. The judgment
obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any
other form of payment acceptable to the
latter, the amount of the judgment debt
under proper receipt directly to the judgment
obligee or his authorized representative if
present at the time of payment. The lawful
fees shall be handed under proper receipt to
the executing sheriff who shall turn over the
said amount within the same day to the clerk
of court of the court that issued the writ.
This assumes that the property of the defendant which was levied
in Cotabato but judgment is one which originated in Davao clerk
to clerk.
The last sentence says In no case shall the executing sheriff
demand that any payment by check be made payable to him. It
shall be payable to the obligee. I think what the SC would like to
avoid here is that which happened in the case of PAL a labor case
where PAL paid check payable to the sheriff. The sheriff ran away
with the check. PAL was made to pay all over again.
STEPS: (under paragraph [a])

1)
2)
The sheriff must demand payment from the obligor;
366

(b)
Satisfaction by levy. - If the
judgment obligor cannot pay all or part of the
obligation in cash, certified bank check or
other mode of payment acceptable to the
judgment obligee, the officer shall levy upon
the properties of the judgment obligor of
every kind and nature whatsoever which may
be disposed of for value and not otherwise
exempt from execution giving the latter the
option to immediately choose which property
or part thereof may be levied upon, sufficient
to satisfy the judgment. If the judgment
obligor does not exercise the option, the
officer shall first levy on the personal
properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.
177), where the SC said the debtor is given the option of which
property shall be levied.
So, under paragraph [a], the first step is when the judgment debtor
has enough money, bayaran niya in cash or check.
A: YES. And under the last paragraph of [b] They may be levied
upon in like manner and with like effect as under a writ of
attachment under Rule 57 on attachment.
And the sequence of levying is to levy the personal properties first.

Then real properties if personal properties are not sufficient.
Under the second paragraph of [b], when the sheriff levies on the
property of the judgment debtor and the judgment debtor has
more than sufficient property to cover the judgment debt, the
sheriff cannot levy all the properties. Or else, he will be made
liable. For example, the debt is only P 30,000, tapos ang i-levy mo
kotse (Toyota Altis) at bahay, which worth millions? My golly!
Thats too much! You sell only up to the point that the judgment
will be satisfied.
Q: But if it is real property or intangible personal property like
shares of stock, debts, credits (collectibles), can you levy on these?
Q: Suppose walang pera, or the cash is not sufficient. What will the
sheriff do?
GARNISHMENT HOW TO LEVY
A: He shall levy upon the properties of the judgment obligor not

otherwise exempt from execution. In the vernacular term,
sasabihing na-sheriff ka.
Paragraph [c] of Section 9 is on how to levy intangibles. When you

want to levy or you want to execute on intangible property, the
legal term there is garnishment.
Q: Define levy.
(c)
Garnishment of debts and credits. The officer may levy on debts due the
judgment obligor and other credits, including
bank deposits, financial interests, royalties,
commissions and other personal property not
capable of manual delivery in the possession
or control of third parties. Levy shall be made
by serving notice upon the person owing such
debts or having in his possession or control
such credits to which the judgment obligor is
entitled. The garnishment shall cover only
such amount as will satisfy the judgment and
all lawful fees.
A: Levy is the act whereby a sheriff sets apart or appropriates, for

the purpose of satisfying the command of the writ, a part or the
whole of the judgment-debtors property. (Valenzuela vs. De
Aguilar, L-18083-84, May 31, 1963) Normally, this is done on
personal property. Kung lupa naman, they will annotate on the
title. Parang mortgage ba.
Q: What is the importance of levy with respect to execution of a
money judgment?
A: Levy is a pre-requisite to the auction sale. In order that an
execution sale may be valid, there must be a previous valid levy. A
sale not preceded by a valid levy is void and the purchaser acquires
no title. (Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963)
The garnishee shall make a written report to

the court within five (5) days from service of
the notice of garnishment stating whether or
not the judgment obligor has sufficient funds
or credits to satisfy the amount of the
judgment. If not, the report shall state how
much funds or credits the garnishee holds for
the judgment obligor. The garnished amount
in cash, or certified bank check issued in the
name of the judgment obligee, shall be
delivered directly to the judgment obligee
within ten (10) working days from service of
notice on said garnishee requiring such
delivery, except the lawful fees which shall
be paid directly to the court.
Q: What kind of property can be levied?

A: Any real, personal, tangible, intangible except those
properties exempt from execution.
Q: Does the debtor have the right to tell the sheriff what property
he should levy?
A: YES. The law gives the debtor or defendant the option to
immediately choose which property or part thereof may be levied
upon sufficient to satisfy the judgment. Example: I am the debtor
and I have many properties. And the sheriff would like to levy on
my house and lot, or yung Toyota Altis ko. Under the law, I have
the right to choose among them.
In the event there are two or more

garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees
who shall be required to deliver the amount
The phrase giving the latter the option to immediately choose

which property or part thereof may be levied upon, sufficient to
satisfy the judgment. This did not appear under the old law. This is
taken from the case of PHILIPPINE MILLS vs. DAYRIT (192 SCRA
367

due; otherwise, the choice shall be made by

the judgment obligee.
which shall have the force and effect of a

conveyance executed in due form of law.
(10a)
xxxxx
The executing sheriff shall observe the same

procedure under paragraph (a) with respect
to delivery of payment to the judgment
obligee. (8a, 15a)
EXAMPLES of the first sentence:

1)
An action for reconveyance of property where you are

asking the defendant, a title owner, to convey to you his
property. The property will be held in trust or that the
title be in your name instead of his;
2)
Pacto de retro. I sold to you my land and I am

repurchasing it, pero ayaw mo. You refuse to execute a
deed of sale returning the property to me;
3)
Public Land Law. I am the owner of a property under

homestead or free patent and sold it after the
prohibition period. Under the public land law, I have the
right to repurchase it within 5 years. Ayaw mong ibalik,
so idemanda kita. Of course, if I win, you will be directed
to return to me the property and execute a deed of sale.
4)
An action for specific performance to compel you to

return to me said property. And the court will order:
Alright, execute a deed of sale. You refuse. The court
may order the clerk of court to sign the deed of sale or
the Register of Deeds will be ordered to register the
same as if done by the obligor. The obligors signature is
not needed.
Q: So, what are these properties which may be the subject of

garnishment?
A: Credits which include bank deposits, financial interests,
royalties, commissions and other personal property not capable of
manual delivery intangibles bah! You send a notice upon the
person owing such debts or having in his possession or control such
credits. And it shall cover only such amount as will satisfy the
judgment.
Example of garnishment: bank account. I will file a case against
you, talo ka. I learned that you have a deposit with Sanikoh Bank.
Puwede kong habulin yan ba, because that is credit. In obligations
and contracts, the relationship of the depositor and the bank is that
of a creditor and debtor. It is not a contract of deposit because
actually, the bank is borrowing money from you. Kaya nga, it pays
you interest eh.
So, under garnishment, the bank is being commanded not to pay
you but instead pay the sheriff. Yaan!! Yan ang concept ng
garnishment. Garnishee refers to the debtor, like the bank. When
the bank deposit is garnished, the second paragraph tell us what
the bank will do. And if there are 2 or more banks na ma-garnish,
under the next paragraph, the debtor obligor will determine. If he
does not exercise his option, then the judgment creditor will
determine.
(b)
Sale of real or personal property. - If
the judgment be for the sale of real or
personal property, to sell such property,
describing it, and apply the proceeds in
conformity with the judgment. (8 [c] a)
EXECUTION OF JUDGMENT OTHER THAN MONEY

Section 10 is the procedure for executing a judgment other than to
collect money. Sometimes, money is only incidental. There are
court decisions could be something else like specific performance,
or accion publiciana. You are more interested in recovering your
property. Another is Unlawful Detainer where unpaid rentals may
be paid but the plaintiff is more interested in the ejectment the
unpaid rentals can be collected in the same manner as Section 9.
Sec. 10.
act.
The best example for [b] is an action for termination of coownership where there are 50 co-owners of one (1) hectare the
property will be ordered sold and the proceeds will be distributed
among the co-owners.
(c)
Delivery or restitution of real
property. - The officer shall demand of the
person against whom the judgment for the
delivery or restitution of real property is
rendered and all persons claiming rights
under him to peaceably vacate the property
within three (3) working days, and restore
possession thereof to the judgment obligee;
otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, or appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such
property. Any costs, damages, rents or
profits awarded by the judgment shall be
satisfied in the same manner as a judgment
for money. (13a)
Execution of judgments of specific
(a) Conveyance, delivery of deeds, or other

specific acts; vesting title. - If a judgment
directs a party to execute a conveyance of
land or personal property, or to deliver deeds
or other documents, or to perform any other
specific act in connection therewith, and the
party fails to comply within the time
specified, the court may direct the act to be
done at the cost of the disobedient party by
some other person appointed by the court
and the act when so done shall have like
effect as if done by the party. If real or
personal property is situated within the
Philippines, the court in lieu of directing a
conveyance thereof may by an order divest
the title of any party and vest it in others,
Now, with respect to Section 10, particularly paragraph [c]

delivery or restitution of real property. this is applicable to
actions for forcible entry, unlawful detainer, accion publiciana.
368

Q: So, what is the procedure?
tapos hindi mo nabayaran, babawiin yan ng appliance center. Or,

the finance company or the car dealer will resort to replevin to
recover the unit by filing an action for replevin against the buyer.
A: The sheriff will give the defendant the chance to vacate the
property, I am giving you the chance to vacate within three (3)
working days and restore possession thereof. And then ayaw mo
pa rin, I will use force to oust you with the assistance of the
appropriate peace officers and place the judgment obligee in
possession of such property.
Take note that the procedure for enforcing a money judgment is

different from enforcing a judgment for ejectment, or recovery of
possession. Enforcement of money judgment is in Section 9 you
get the money. Kung walang money, you levy on the property of
the defendant. If it is ejectment or recovery of possession of
property, you follow Section 10, paragraph [c].
And if there are damages or unpaid rentals, I will also levy the
property under Section 9. Because sometimes, aside from ousting
the defendant, meron pang money judgment like unpaid rentals.
So, the property of the defendant may be levied. That is the
procedure.
Now, here is an interesting case involving these two sections

(Sections 9 & 10) the 1995 case of
ABINUJAR vs. CA 243 SCRA 531
In the 1995 case of

FACTS: The case of Abinujar started when the plaintiff filed a case
for unlawful detainer against the Abinujar spouses for the latter to
vacate their house in Manila. When the case was going on, the
parties executed a compromise agreement which became the basis
of the judgment by the court, so a compromise judgment.
SAN MANUEL vs. TUPAS 249 SCRA 466

HELD: The immediate enforcement of a writ of ejectment
execution is carried out by giving the defendant a 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 enforces the writ by the
bodily removal of the defendant and his personal belongings.
The agreement stated that the Abinujar spouses shall pay the
plaintiffs the amount specifically agreed upon: P50,000 on January
31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until
September 30. It further states that failure on the part of the
Abinujar spouses to pay three (3) consecutive payments, the
plaintiffs shall be entitled to a writ of execution.
(d)
Removal of improvements on
property subject of execution. - When the
property subject of the execution contains
improvements constructed or planted by the
judgment obligor or his agent, the officer
shall not destroy, demolish or remove said
improvements except upon special order of
the court, issued upon motion of the
judgment obligee after due hearing and after
the former has failed to remove the same
within a reasonable time fixed by the court.
(14a)
After three (3) months, the plaintiffs filed a motion for execution
on the ground that the Abinujars failed to pay the three
installments. The trial court granted the motion and the notice to
the defendant to voluntarily vacate the premises was served on the
Abinujars.
The Abinujars attacked the validity of the sheriffs notice to vacate
by way of enforcing the compromise judgment. They maintained
that their obligation is monetary and therefore you should apply
Section 9 you collect but do not eject us. The plaintiffs argued
that what is applicable is Section 10 on ejectment because this is an
unlawful detainer case.
Q: When you oust the defendant in regard of a possession case, is a

writ of execution a sufficient basis for the removal of
improvements of the property?
ISSUE: Which section shall be applied Section 9? or Section 10?

A: NO. Under paragraph [d], the plaintiff or judgment obligee still
have to get a special order from the court by filing a petition to
authorize the destruction or removal of the improvements of the
property after the defendant is given a reasonable time to remove
his shanty or house voluntarily.
HELD: The contention of the Abinujars is meritorious meaning,

you cannot eject the Abinujars.
When the parties entered into a compromise agreement, the
original action for ejectment was set aside and the action was
changed to a monetary obligation.
In other words, there must be a special order. The writ of execution

only authorizes you to oust the defendant physically, but not to
destroy any property. Just like in squatters, you need a special
order for demolition.
A perusal of the compromise agreement signed by the parties and

approved by the inferior court merely provided that in case the
Abinujars failed to pay three monthly installments, the plaintiffs
would be entitled to a writ of execution, without specifying what
the subject of execution would be. Said agreement did not state
that Abinujars would be evicted from the premises subject of the
suit in case of any default in complying with their obligation
thereunder. This was the result of the careless drafting thereof for
which only plaintiffs were to be blamed.
(e)
Delivery of personal property. - In
judgments for the delivery of personal
property, the officer shall take possession of
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for
money as therein provided. (8a)
Paragraph [e] is related to REPLEVIN action to recover personal
property where the plaintiff is trying to repossess a personal
property from the defendant. For example, bili ka ng appliance
As Abinujars obligation under the compromise agreement as

approved by the court was monetary in nature, plaintiffs can avail
369

only of the writ of execution provided in Section 9, and not that

provided in Section 10.
Rule 65, Sec 9. Service and enforcement of

order or judgment.- A certified copy of the
judgment rendered in accordance with the
last preceding section shall be served upon
the court, quasi-judicial agency, tribunal,
corporation, board, officer or person
concerned in such manner as the court may
direct, and disobedience thereto shall be
punished as contempt. An execution may
issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
ORDINARY AND SPECIAL JUDGMENT

Sec. 11. Execution of special judgments. When a judgment requires the performance
of any act other than those mentioned in the
two preceding sections, a certified copy of
the judgment shall be attached to the writ of
execution and shall be served by the officer
upon the party against whom the same is
rendered, or upon any other person required
thereby, or by law, to obey the same, and
such party or person may be punished for
contempt if he disobeys such judgment. (9a)
Therefore, a judgement in a certiorari, prohibition or mandamus

case, if not complied with, is punishable by contempt.
Sec. 12. Effect of levy on execution as to
third persons. - The levy on execution shall
create a lien in favor of the judgment obligee
over the right, title and interest of the
judgment obligor in such property at the time
of the levy, subject to liens and
encumbrances then existing. (16a)
There are two (2) types of judgment under the law: (1) SPECIAL and
(2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the defendant to
pay money, like a collection case (Section 9) or to deliver real or
personal property (Section 10).
This is related to Property Registration Decree.

SPECIAL JUDGMENT is a judgment which requires the defendant
to perform an act other than payment of money or delivery of
property. It refers to a specific act which a party or person must
personally do because his personal qualifications and
circumstances have been taken into consideration.
EXAMPLE: I own a piece of land which I mortgaged with the bank.

The bank annotated the mortgage on my title. My land is now
subject to a lien or an encumbrance. I also owe money to A. He
sued me. He won and my land is levied.
EXAMPLE of a special judgment: Usurpation of government office.

You are the city treasurer and somebody else is appointed city
treasurer and you refuse to vacate. So there will be a quo warranto
proceeding. Then the judgment will order you to vacate your
position, such judgment is a special judgment because you are not
ordered to pay anything nor deliver property.
Q: What happens to the mortgage lien of the bank? Will it be

affected by the levy of A?
A: NO. Even if the property is sold at public auction and we will
assume that it will go to A, that property is still under mortgage. A
has to respect the lien nauna yung sa bank eh! Wherever the
property goes, it is subject to the mortgage lien of the bank
because the banks lien is superior.
Q: What is the difference between the Ordinary and Special

judgments?
Therefore, an execution is always subject to the liens and

encumbrances of the property then existing.
A: A special judgment may be enforced by contempt if the

defendant refuses to comply with the judgment. But if it is an
ordinary judgment and the defendant refuses to comply, it is not a
ground for contempt.
PROPERTIES EXEMPT FROM EXECUTION

We already discussed the rule that to satisfy a money judgment,
the sheriff can levy on the properties of the judgment obligor. All
properties are subject, except those exempt from execution. What
are the properties of a defendant-debtor which cannot be subject
to a levy or execution?
Under Section 9, if the judgment-debtor refuses to pay his debt,

you cannot cite him in contempt because under the Constitution,
no person shall be imprisoned for debt. The correct procedure
under Section 9 is you look for properties of the defendant and
then ipa-levy mo. You do not send the debtor to jail.
Under Section 10 if the squatter refuses to vacate, you cannot cite
him in contempt and send him to jail. Kung ayaw, you get police for
back up. That is the procedure.
Sec. 13. Property exempt from execution. Except as otherwise expressly provided by
law, the following property, and no other,
shall be exempt from execution:
But under Section 11, if defendant is ordered to vacate his office

because he is no longer the city treasurer, the plaintiff can have
him arrested and brought to jail because that is a special judgment
which can be enforced by contempt.
(a) The judgment obligor's family home as

provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith;
Q: Give an specific rule on special judgment.
You have a house where your family resides. You call it FAMILY
HOME it is the house where the members of the family reside,
including the lot.
A: Section 9 of Rule 65 Special Civil Action for Certiorari,

Prohibition and Mandamus, to wit:
370

Q: For instance, you lost in a case where you are liable for P200T.
You have no other property left except that house where you live.
Can the sheriff levy the house to answer such obligations?
Or, you file a case against PAL. They lost. You levy on the airbus.
PAL alleged exemption because it is a tool or implement. My golly!
Lahat ng properties, tools or implements!? Di pwede yan! That is
not what the law contemplates.
A: NO. The judgment obligors family home and the land

necessarily used in connection therewith is exempt. That is a
guarantee that no matter how many obligations you have, there is
no way for you to be thrown to the street to be a homeless
person. Your house cannot be levied; but in the Family Code,
theres a limit, if your house is a mansion worth millions, that is not
exempt. Please review your Family Code on this matter.
Now, what is interesting in the PENTAGON case is that the SC says

that firearms can be levied, they can be sold at public auction. SC:
However, for security reasons, and to prevent the possibility that
the firearms to be sold at the execution sale may fall into the hands
of lawless and subversive elements, the sale at public auction
should be with the prior clearance and under supervision of the
PNP. Otherwise, the persons who might bid are kidnappers, NPA,
Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto
Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must
be a prior clearance on the sale of the firearms during the auction
sale.
(b) Ordinary tools and implements personally used

by him in his trade, employment, or livelihood;
This is self-explanatory. If you are a carpenter, you earn your living
by being a carpenter. What are the ordinary tools that you must
have? Saw, hammer, etc. By public policy and by legal provision,
the tools and implements used by a carpenter in his trade,
employment, or livelihood cannot be levied by the sheriff.
(c)
Three horses, or three cows, or
three carabaos, or other beasts of burden,
such as the judgment obligor may select
necessarily used by him in his ordinary
occupation;
Under the prior law, there was no word ordinary and

personally. The old law says, tools and implements used by him.
In the new rules, the words ordinary and personally are added.
What is the reason behind this? This provision is in accordance with
what the SC ruled in the 1990 case of
For example, you are a farmer. You plow your land by a carabao.
You cannot levy the carabao. OR, if you are a cochero, you have a
horse for your caretela. You cannot levy the horse. [ang horse shit,
pwede! Pero yung horse mismo, di pwede!] And under the prior
rules, only 2 horses, 2 cows or carabaos are exempt. The new rules
make it three (3).
PENTAGON SECURITY vs. JIMENEZ 192 SCRA 492

FACTS: The Pentagon Security and Investigation Agency (PSIA) is a
security agency owned by somebody who is engaged in security
services. Because of a money judgment against the agency in a
labor case, the sheriff levied all the firearms of the agency. PSIA
claimed that the firearms are exempt from execution under
paragraph [b] since they are tools and implements used by the
agency in its trade, employment or livelihood because how can a
security agency operate without firearms.
(d)
His necessary clothing and articles
for ordinary personal use, excluding jewelry;
You cannot levy on the debtors wardrobe. These are articles for
ordinary personal use. This article excludes jewelry. Alahas, pwede
i-levy. All other things for basic needs are exempt, like personal
comb, toothbrush, etc.
ISSUE: Is the argument of PSIA correct?
(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;
HELD: NO. The firearms owned by PSIA are not covered by the
exemption.
The term tools and implements refers to instruments of
husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here, PSIA is a business enterprise. It
does not use the firearms personally, but they are used by its
employees. Not being a natural person, petitioner cannot claim
that the firearms are necessary for its livelihood.
Household furniture like dining table, dining chair, sala set, utensils
necessary for housekeeping and used for the purpose by the
obligor and his family like plates, forks, spoons. How can you eat
without those utensils. BUT theres a limit that the value does not
exceed P100,000. If the value exceeds, it can be levied.
It would appear that the exemption contemplated by the

provision involved is personal, available only to a natural person,
such as a dentists dental chair and electric fan. If properties used
in business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the
business entity.
There was a sheriff who asked me (Dean I). According to him, he

was enforcing a money judgment. The sheriff went to the house of
the debtor. He took the stereo, TV set, refrigerator. Defendant said,
Hindi pwede dahil hindi pa umabot ng P100,000. Sabi ko, you
look at the law: You cannot levy those furnitures if not exceeding
P100,000. In my (Deans) view, covered yan. But utensils not
necessarily for living are not covered by the exemption. They are
luxury, not necessary. These TV, sala set, refrigerator can be levied
because they are not necessary for living as contrasted to kutsara,
plato, etc. (Dean however refused to answer the sheriff whether
the properties in question can be levied. Tanungin mo ang abogado
mo!)
Meaning, if the exemption is extended to a juridical person like a

corporation, then practically all the properties needed by the
business could be considered as tools and implements. For
EXAMPLE, you will sue a carrier like Bachelor Bus and you won.
Then you will levy on the bus. Bachelor will claims exemption
because that is a tool or implement.
371

(f)
Provisions for individual or family
use sufficient for four months;
levied. Any pension or gratuity from the government GSIS

pension, for example.
For example, one sack of rice for daily consumption, canned goods
provisions for consumption good for 4 months are exempt. If you
have one bodega of rice, ibang storya yan.
(m) Properties specially exempted by

law.
This is very broad any other property exempt by special law.
(g)
The professional libraries and
equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professional,
not exceeding three hundred thousand
(P300,000.00) pesos in value;
Q: Give an example where a property is exempt from execution

under the special law?
A: The following:
1)
Your books, books of judges and professionals and equipment

maybe the computer, typewriter, dentists chair, equipment of
engineers are exempt provided the value does not exceed
P300,000.
2)
(h)
One fishing boat and accessories
not exceeding the total value of one hundred
thousand (P100,000.00) pesos owned by a
fisherman and by the lawful use of which he
earns his livelihood;
3)
Section 13, last paragraph:
Example: Fishing boat of a fisherman, the accessories net,

provided these do not exceed P100,000.
But no article or species of property

mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a judgment of
foreclosure of a mortgage thereon. (12a)
(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;
The last paragraph of Section 13 says that if for example, you

ordered books and you failed to pay, you cannot claim the
exemption because the obligation arose from the same item. For
example:
The salary of a person within 4 months is exempt. For example, you

have backwages of 6 months. Only 2 months salary can be levied.
Exempt ang 4 months.
BAR PROBLEM: A lawyer went to Alemars professional books

supply. He bought books worth half a million. That was utang
P500,000. The store decided to sue the lawyer for such amount not
paid. The bookstore got a judgment. There was a levy on the
lawyers property. The sheriff levied on the same books which
became the source of the case. The lawyer claimed exemption
under Section 13 up to P300,000 because it forms part of his
professional library. Is the lawyer correct??
Technically, wages and salaries are exempt as long as they are

necessary for support of living. If you earn a minimum wage,
everything may be exempted. But if you earn P50,000 a month and
you support only two people, the court may levy on the excess.
(j)
Property obtained pursuant to a free patent application,

HOMESTEAD. That is not subject to any claim within 5
years. You cannot even sell that within 5 years, how
much more kung embargohin sa iyo? That is under CA
141 Public Land Law;
Under Social Legislation, SSS benefits are also exempt
from execution, just like GSIS benefits;
Under CARP law, the property acquired by a tenant
under that law cannot be levied also.
Lettered gravestones;
Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on

lettered gravestones? My golly!
A: the lawyer is WRONG because of the last paragraph of Section

13 that no article or species of properties mentioned in this section
shall be exempt from execution issued upon a judgment recovered
for the price or upon a judgment of foreclosure of a mortgage
thereon.
(k)
Monies, benefits, privileges, or
annuities accruing or in any manner growing
out of any life insurance;
What the law says, is the properties mentioned here (in Section 13)
are exempt, EXCEPT when that debt arose out of that property. For
example, here, why are you indebted to Alemars? Because of
unpaid books. So the very books which gave rise to an obligation
are not exempt from execution.
The proceeds of life insurance. The amount received by the

beneficiaries cannot be levied, not a single centavo.
(l)
The right to receive legal support,
or money or property obtained as such
support, or any pension or gratuity from the
Government;
But if another creditor will file a case against the lawyer, and that
other creditor will win, that creditor cannot levy on the books
because they are exempt. But the creditor from whom the books
were bought can levy on the same books which gave rise to an
obligation.
The right to receive legal support. The right ba! For instance, ako na
lang ang mag receive ng support mo. Hindi pwede yan. Also the
money given monthly to you if you are receiving support cannot be
372

The same thing with FAMILY HOME. For example, you will build a
family home and then, hindi mo binayaran ang materials, labor and
there was judgment against you. The creditor and the owner can
levy on the house. He cannot claim exemption because the debt
arose out of that same family home.
So, the sheriff says based on the RETURN, Wala pang property ang
defendant. Now, he just keeps on holding the writ. And maybe
after one or two years, meron nang property ang defendant, he
can now enforce the writ. But definitely, there is no need for the
defendant to go back to the court to ask for another alias writ of
execution because the writ can still be enforced for as long as the
judgment may be enforced by motion.
Another example: You borrowed money from the bank. You

mortgaged your house. Later on, you cannot pay the loan. The
bank foreclosed the mortgage. You cannot argue that your house
cannot be levied. Kaya nga may utang ka because of your house.
Since you mortgaged it, that is not covered by the exemption.
Although every 30 days, the sheriff has to make a periodic report

with the court. I do not know if the sheriffs here follow this
procedure. But definitely, a writ is good for 5 years and in every 30
days, the sheriff has to make a report.
Q: What is the REASON behind this exemption?

NOTICE OF SALE
A: The reason for this exemption is PUBLIC POLICY. And common
sense no? the debtor should pay but this should not deprive him
of a means to earn his living. You can levy on his property but not
to the extent of depriving him of his provisions for support, means
of livelihood by throwing him on to the street, homeless, penniless,
despondent, dejected, mournful, melancholy, forlorn
Sec. 15. Notice of sale of property on

execution. - Before the sale of property on
execution, notice thereof must be given as
follows:
(a)
In case of perishable property, by
posting written notice of the time and place
of the sale in three (3) public places,
preferably in conspicuous areas of the
municipal or city hall, post office and public
market in the municipality or city where the
sale is to take place, for such time as may be
reasonable, considering the character and
condition of the property;
LIFETIME OF WRIT OF EXECUTION FIVE (5) YEARS

Sec. 14. Return of writ of execution. - The
writ of execution shall be returnable to the
court issuing it immediately after the
judgment has been satisfied in part or in
full. If the judgment cannot be satisfied in
full within thirty (30) days after his receipt
of the writ, the officer shall report to the
court and state the reason therefor. Such
writ shall continue in effect during the
period within which the judgment may be
enforced by motion. The officer shall make a
report to the court every thirty (30) days on
the proceedings taken thereon until the
judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall
set forth the whole of the proceedings
taken, and shall be filed with the court and
copies thereof promptly furnished the
parties. (11a)
(b)
In case of other personal property,
by posting a similar notice in the three (3)
public places above-mentioned for not less
that five (5) days;
(c)
In case of real property, by posting
for twenty (20) days in the three (3) public
places above-mentioned a similar notice
particularly describing the property and
stating where the property is to be sold, and
if the assessed value of the property exceeds
fifty thousand (P50,000.00) pesos, by
publishing a copy of the notice once a week
for two (2) consecutive weeks in one
newspaper selected by raffle, whether in
English, Filipino, or any major regional
language published, edited and circulated or,
in the absence thereof, having general
circulation in the province or city;
Under the OLD RULE, the lifetime of a writ of execution is only 60

days. After that, expired na yung writ. The sheriff has to use the
writ to levy on the property of the defendant within 60 days. If the
defendant has no property at present, and the writ has already
expired, and assuming that there will be some properties found in
the future, the procedure under the old rules is, the plaintiff has to
file a motion for an ALIAS WRIT of execution, because once it is
issued, it is again good for another 60 days.
(d)
In all case, written notice of the
sale shall be given to the judgment obligor, at
least three (3) days before the sale, except as
provided in paragraph (a) hereof where
notice shall be given at any time before the
sale, in the same manner as personal service
of pleadings and other papers as provided by
section 6 of Rule 13.
Under the PRESENT RULE, the 60-day period is already obsolete.

The effectivity now of a writ of execution is, for as long as the
judgment may be enforced by motion. And under Section 6, a
judgment may be enforced by motion within five (5) years. So in
effect, the writ of execution is valid for FIVE (5) years. The lifetime
now has been extended from 60 days to 5 years.
Of course, as much as possible, the writ must be enforced within 30
days and after that, the sheriff will tell the court about what
happened after 30 days.
The notice shall specify the place, date and

exact time of the sale which should not be
earlier than nine o'clock in the morning and
not later than two o'clock in the afternoon.
The place of the sale may be agreed upon by
373

the parties. In the absence of such

agreement, the sale of real property or
personal property not capable of manual
delivery shall be held in the office of the clerk
of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ or
which was designated by the appellate court.
In the case of personal property capable of
manual delivery, the sale shall be held in the
place where the property is located. (18a)
third-party claimant if such bond is filed.

Nothing herein contained shall prevent such
claimant or any third person from vindicating
his claim to the property in a separate action,
or prevent the judgment obligee from
claiming damages in the same or a separate
action against a third-party claimant who
filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor
of the Republic of the Philippines, or any
officer duly representing it, the filing of such
bond shall not be required, and in case the
sheriff or levying officer is sued for damages
as a result of the levy, he shall be
represented by the Solicitor General and if
held liable therefore, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of such funds as may
be appropriated for the purpose. (17a)
Auction sale follows levy. There must be notices because auction

sale is open to the public. Notices must be posted in 3 public places
preferably in the municipal hall, post office and public market. In
paragraph [c], if the property to be sold is REAL property, the
notices must describe the property, its location, assessed value if
exceeding P50,000. Aside from notices, the law requires
PUBLICATION in a newspaper so that many people can read it.
You try to go there in the Hall of Justice, may bulletin board diyan
sa labas. Notices are posted there. If you are interested in buying
something, para mura, tingnan mo diyan.
Section 16 is a third-party claim procedure in execution. In Spanish,

it is called the remedy of TERCERIA.
The law is very detailed now. The notice must specify the date of
the sale, time, place etc. And the SC ruled that these requirements
are to be strictly complied with.
ILLUSTRATION: Lolo decided to go on a prolong vacation and he

entrusted to Karen (ang paborito ni Lolo) all his personal property
like appliances TV, refrigerator, car, etc. Karen used the property
owned by Lolo while he was not around. Unknown to Lolo, Karen
has a pending civil case filed by Gina. Gina obtained a judgment
against Karen. There was levy on execution. The sheriff went to the
premises of Karen, he found all these properties and he enforced
the levy.
For example: You do not comply with the posting in 3 conspicuous

places. Dalawa lang sa iyo, that is VOID. The SC said the
requirements of the law for the holding of the public auction
should be strictly followed. Why? Because in a public auction, you
are depriving somebody of his property the judgment debtor. So,
all the requirements of the law intended to deprive the owner of
his ownership over his property should be followed.
Lolo came home and went to get the property from Karen. Karen
said, they were all levied by the sheriff. Lolo is a person who is not
the defendant but his properties were erroneously levied because
the sheriff thought they belong to Karen who was in possession of
them.
Illustration based on Deans experience

TERCERIA (THIRD-PARTY CLAIM)
SECTION 16. Proceedings where property
claimed by third person. If the property
levied on is claimed by any person other than
the judgment obligor or his agent, and such
person makes an affidavit of his title thereto
or right to the possession thereof, stating the
grounds of such right or title, and serves the
same upon the officer making the levy and a
copy thereof upon the judgment obligee, the
officer shall not be bound to keep the
property, unless such judgment obligee, on
demand of the officer, files a bond approved
by the court to indemnify the third-party
claimant in a sum not less than the value of
the property levied on. In case of
disagreement as to such value, the same shall
be determined by the court issuing the writ
of execution. No claim for damages for the
taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty
days from the date of the filing of the bond.
Q: What is the remedy of Lolo who is not a defendant?

A: The remedy is to apply Section 16, Rule 39 You file with the
sheriff, copy furnish Gina, what is known as the third-party claim or
TERCERIA. Terceria is an affidavit asserting that he is the owner of
the property levied. So with that the sheriff is now placed on guard
because the sheriff may be held liable if he continues to sell the
property of the defendant. So, he is not bound to the proceedings
regarding the sale unless the judgment obligee, on demand of the
sheriff, files a bond approved by the court to indemnify a third
party claimant in the sum not less than the value of the property
levied on.
Suppose sabi ni Gina: Huwag kang maniwala diyan. Kalokohan
iyan. Drama lang yan ni Karen at Lolo. Proceed with the auction
sale! Gina has to file a bond if he insists that the auction sale must
proceed. Gina must put up a bond approved by the court to
indemnify the third-party claimant, a sum not less than the value of
the property. If the property is worth half a million, the bond must
also be half a million. Then auction sale may proceed because
theres already a bond to answer for the damages. The sale may go
on despite the third party claim.
The officer shall not be liable for damages for

the taking or keeping of the property, to any
374

THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
Remember that it is possible for a third-party claimant to be a

dummy when it is a frivolous claim, without basis or spurious, para
tulungan lang niya ang defendant. There are people like that. Now,
under the new law, the prevailing party has the right to claim
damages against the third-party claimant for filing frivolous claims.
He can claim the damages in the same action or in a separate
action.
Now, do not confuse a third-party claim under Rule 39 with a thirdparty complaint under Rule 6.
Q: What is a third-party complaint under Rule 6?
A: A third-party complaint under Rule 6 is a PLEADING filed by a
defendant against the third person not a party to the action for
contribution, indemnity, subrogation, or any other relief in respect
of the plaintiffs complaint.
Now, many people do not really understand what is a third-party

claim, even some lawyers:
Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng
another case? Can I not just complain to the court which rendered
the decision? Can I not just file a motion asking the judge to order
the release of the property? Is a separate action not a violation of
the rule against multiplicity of suits?
Q: What is a third-party claim under Rule 39?

A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT
made by a third person who claims to be entitled to the property in
the custody of a sheriff by virtue of a writ of execution.
A: NO! You cannot bring out the issue to determine the ownership
of the property. INTERVENTION here is not proper. [Is this not a
ground for intervention? GROUNDS FOR INTERVENTION:
The one who files a third party claim is technically called third-party
CLAIMANT. The one who files a third party complaint is called thirdparty PLAINTIFF. I notice that even in SC decisions, the SC commits
that lapse: The defendant filed a third party complaint or
sometimes third party claimant. But actually, the correct term is
third-party plaintiff.
1)
2)
3)
4)
Q: Now, under the law, where will you file your third-party claim?
A: You file it with the sheriff although legally, it is considered as it is
filed in the court because the sheriff is only an agent of the court.
The sheriff does not have the power to rule on the legal issues.
Only the judge can. And it is the court which decides on the validity
of a third party claim.
the intervenor has legal interest in the subject matter;

the intervenor has an interest in the success of either
parties;
the intervenor has an interest against both parties; and
The intervenor is adversely affected by a distribution of a
property in the custody of a court or an officer thereof.]
The SC said YOU CANNOT INTERVENE because under Rule 19, an

intervention can only be done at any time before judgment. But
here in Rule 39, we are now on the stage of execution meron ng
judgment! Tapos na ang kaso. [Gago!!] Intervention comes to
late. The judge has already decided the case. Now, bakit bigyan mo
naman siya ng bagong trabaho? Thats another issue different from
a case already tried. So, a separate action is the proper remedy.
Q: If I am the third person and I want to vindicate my claim to that

property, is a third party claim procedure the only remedy I have
under the law? Even if theres a third party claim, auction sale may
proceed as long as theres a bond. But I want the auction sale not
to proceed and I want the property to be returned in my favor, do I
have any other remedy?
On the other hand, such doctrine should be reconciled with what

the SC said in the case of
SY vs. DISCAYA 181 SCRA 378
A: YES. Second paragraph: Nothing herein contained shall prevent

such claimant or any third person from vindicating his claim to the
property in a SEPARATE ACTION. So, the remedy of third-party
claim is NOT exclusive. There is nothing in Section 16 which says
that a third person is deprived of a right to file a separate action.
HELD: If your property was erroneously levied under Rule 39, you
can seek relief from the very same court which rendered the
judgment by simply filing a motion to question the actuation of the
sheriff, because execution is part of the process in that case and
the sheriff is an officer of the court and the court has the complete
control over the actuation of the sheriff. Therefore, why require
the 3rd-party to file another action when he can seek relief in the
same case? Meaning, the third party can seek relief in the same
case but only to determine whether the sheriff acted rightly or
wrongly, BUT not for the purpose of determining the issue of
ownership. Questions of ownership cannot be decided here. There
must be a separate action for the issue of ownership.
As the lawyer of Lolo, I have another option: instead of filing a third

party claim, I would file a case in court the separate case would
name Gina as the defendant. The cause of action is that the sheriff
mistakenly or erroneously levied the properties not owned by
Karen because I am the real owner. Since there was a mistaken
levy, I am also asking the court to declare the levy as null and void,
the auction sale should not proceed.
The court might rule in my favor, so a separate action is allowed.
Thus, a third-party claim is not the only remedy available under the
law for the third party claimant.
A third person whose property was seized by a sheriff to answer

for the obligation of the judgment debtor may invoke the
supervisory power of the court which authorized such execution.
Upon due application by the third person and after summary
hearing, the court may command that the property be released
from the mistaken levy and restored to the rightful owner or
possessor. What said court can do in these instances, however, is
limited to a determination of whether the sheriff has acted rightly
or wrongly in the performance of his duties in the execution of
judgment, more specifically, if he has indeed taken hold of property
The second part also contains a new provision, or prevent the

judgment obligee from claiming damages in the same or a separate
action against a third party claimant who files a frivolous or plainly
spurious claim.
375

not belonging to the judgment debtor. The court does not and
cannot pass upon the question of title to the property, with any
character of finality. It can treat of the matter only insofar as may
be necessary to decide if the sheriff has acted correctly or not.
actual damages, to be recovered by motion in

the same action. (19a)
Notices in the auction sale should be posted in three public places.
For example, you go to the hall of justice. You can see there a
bulletin board, maraming nakalagay, half man niyan mga notice of
public aution ba. Now, do not go there and kunin ang mga papel
doon. Baka multahan ka. You are not supposed to remove or
deface them.
So, the court that renders the judgment cannot decide on the issue
of ownership to a third person. So your remedy is to file another
case. But in the case of DISCAYA, the court which renders the
judgment can determine whether the sheriff has acted wrongly or
correctly. And if it is wrong it can order the property erroneously
levied to be released without need of filing a separate action.
Sec. 18. No sale if judgment and costs paid. At any time before the sale of property on
execution, the judgment obligor may prevent
the sale by paying the amount required by
the execution and the costs that have been
incurred therein. (20a)
Q: So how do you reconcile the two doctrines?

A: If it is obvious that the sheriff committed a mistake 100%
mistake, i.e. he levied property belonging to a third person who is
not a defendant to require a third person to go to court and file
another case will be tedious. Why can he not seek relief from the
same court? Anyway if it is very obvious that the sheriff acted
wrongly, that is only incidental.
Q: Can the debtor stop the auction sale? Is there a way for the
debtor to prevent the sale of his property?
A: YES, if the obligor pay the amount required by the execution and
the costs bayaran mo lahat ang utang mo, di wala na. Thats
what the law says. For example, the bank is foreclosing your
mortgage and sell the property at public auction. To stop the bank
from proceeding with the sale, you go to the bank and pay all your
obligations. So, wala ng auction sale. But you have to pay all.
Kalahati lang ang bayaran ko. Ah, hindi puydi yan.
But when the issue is whether the property is owned by the

defendant or the third person, and the issue is controversial who
is the rightful owner that cannot be decided summarily by the
court which rendered decision. It should be threshed out in an
independent separate civil action. So that will be the consideration.
The SC summarized all these remedies in the 1995 case of:
Sec. 19. How property sold on execution; who

may direct manner and order of sale. All sales
of property under execution must be made at
public auction, to the highest bidder, to start
at the exact time fixed in the notice. After
sufficient property has been sold to satisfy
the execution, no more shall be sold and any
excess property or proceeds of the sale shall
be promptly delivered to the judgment
obligor or his authorized representative,
unless otherwise directed by the judgment or
order of the court. When the sale is of real
property, consisting of several known lots,
they must be sold separately; or, when a
portion of such real property is claimed by a
third person, he may require it to be sold
separately. When the sale is of personal
property capable of manual delivery, it must
be sold within view of those attending the
same and in such parcels as are likely to bring
the highest price. The judgment obligor, if
present at the sale, may direct the order in
which property, real or personal, shall be
sold, when such property consists of several
known lots or parcels which can be sold to
advantage separately. Neither the officer
conducting the execution sale, nor his
deputies, can become a purchaser, nor be
interested directly or indirectly in any
purchase at such sale. (21a)
EVANGELISTA vs. PENSERGA 242 SCRA 702

HELD: The remedies of a third person whose property was seized
by the sheriff to answer for the obligation of a judgment obligor are
the following:
1)
Invoke the supervisory power of the court which

authorized such execution (Sy vs. Discaya);
2)
Terceria - third party claim (Rule 39, Section 16);

and
3)
Any proper action to vindicate his claim to the

property, meaning a separate civil action. (second
paragraph, Section 16, Rule 39)
So these are the three remedies of a third person whose property

was seized by a sheriff to answer for the obligation of another
person.
Sec. 17. Penalty for selling without notice, or
removing or defacing notice. - An officer
selling without the notice prescribed by
section 15 of this Rule shall be liable to pay
punitive damages in the amount of five
thousand (P5,000.00) pesos to any person
injured thereby, in addition to his actual
damages, both to be recovered by motion in
the same action; and a person willfully
removing or defacing the notice posted, if
done before the sale, or before the
satisfaction of the judgment if it be satisfied
before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person
injured by reason thereof, in addition to his
Execution sale shall be done at public auction. The public is invited

to bid kaya may public notice. There are even publication for real
property TO THE HIGHEST BIDDER. How does it happen?
Normally, ang unang magbi-bid diyan is iyong creditor. And
normally, his bid will be equal to the judgment in his favor. For
376

example, the judgment against B is P1 million which includes

principal and interest. Ang bid ko P1 million din. Okay lang, bahala
ka kung sinong mas mataas diyan. That is how it normally happens.
Auction sale: We are now going to sell this piece of property.

Alright, highest bidderP10,000, next P11,000, P12,000, P13,000.
Sabi noong isa, Alright, P40,000! Sheriff: Any other bid?wala
na? Ok wala na! then, its sold to you. Saan ang pera mo? Bidder:
Wala akong pera, biro lang iyon.
Q: Now, suppose there are many properties levied. What is the

process?
My golly! Pwede kang i-contempt niyan ba! [nagpapatawa, hindi

naman kalbo!] You can be declared in contempt of court. Hindi ito
biruan. This is a proceeding. So we will repeat the procedure kasi
wala man. Kalokohan pala ito. Bwiset!
A: You sell them one by one. Hindi pwede sabay-sabay. [Maysamaysa laeng balong!] After sufficient property has been sold and
that is enough to satisfy the debt, then do not sell anymore. Do not
sell more than what is necessary to satisfy the judgment.
Q: May he bid again?

When the sale is of real property, consisting of several known
lots, they must be sold separately.
A: No more. The officer may thereafter reject any subsequent bid

of such purchaser who refused to pay. So do not fool around there
when you make a bid. You must be serious and you must be ready
to pay for you bid.
Years ago, I witnessed an auction sale of subdivision here.

Obviously, the owner of the subdivision could not pay his account.
So there was a public auction. Of course, the subdivision consists of
more than 100 lots iba-iba ang location, may mapa eh. Now, you
cannot say, Alright, 150 lots. Pila man? Hindi puydi iyan. Isa-isa
dapat Lot #1, lot #2, lot #3 kaya pa ba iyan? I may be
interested to buy only one lot. So, lot #1, highest bidder, lot
#2until the proceeds are enough to satisfy the account. So hindi
pwedeng one time, garapalan iyan, kapal ng sheriff niyan. Mga
170 lots ah hindi pwede iyanisa-isa dapat. That is how tedious
it is.
Sec. 21. Judgment obligee as purchaser. When

the purchaser is the judgment obligee, and
no third-party claim has been filed, he need
not pay the amount of the bid if it does not
exceed the amount of his judgment. If it
does, he shall pay only the excess. (23a)
Q: Can the judgment obligee the creditor-plaintiff participate in
the auction sale?
The law says, the debtor, if he is present, he can intervene. He says,

Alright, unahin mo muna ito because he may know of
somebody who is willing to buy his property. So he can tell the
sheriff, If you want to sell unahin mo muna ito because merong
malaking bayad yan eh in order for his other properties to be
saved from the execution.
A: YES, under Section 21. The sale is open to the public. As a matter
of fact, in normal auction sale, the first bidder is the plaintiff
himself.
Q: Suppose, he is the highest bidder. So the property is declared
sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on
compensation I owe you money on the purchase price for your
property but you also owe me money based on the judgment. So
quits na tayo. Wala ng bayaran! Iyang property na ang pinakabayad mo.
Now, the last paragraph, the last sentence says, neither the officer
conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any purchase at
such sale. So the sheriff and his deputy cannot participate in the
auction, these are prohibited interest.
I think there is also a prohibition in the Civil Code on this on
prohibited sales. The judge cannot be interested in the sale of a
property which is the subject matter of the litigation. The lawyer
here cannot purchase a property involving a case which he
handled, to prevent conflict of interest.
EXCEPTION: Two (2) instances when obligee may be required to

pay for his bid:
1)
Sec. 20. Refusal of purchaser to pay. If a

purchaser refuses to pay the amount bid by
him for property struck off to him at a sale
under execution, the officer may again sell
the property to the highest bidder and shall
not be responsible for any loss occasioned
thereby; but the court may order the refusing
purchaser to pay into the court the amount
of such loss, with costs, and may punish him
for contempt if he disobeys the order. The
amount of such payment shall be for the
benefit of the person entitled to the proceeds
of the execution, unless the execution has
been fully satisfied, in which event such
proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter
reject any subsequent bid of such purchaser
who refuses to pay. (22a)
When his bid is higher than the judgment. So he has to pay

the cash for the excess or
EXAMPLE: The judgment in my favor is P1 million, my bid is
P1.2 million and Im the highest bidder. So I have to pay you
the balance, the P200,000 because that is more than the
judgment in my favor.
2)
when the property which is to be sold is a subject of a third

party claim because it is really controversial whether the
property is really owned by the judgment debtor.
So, if there is a 3rd party claim, he has to pay because it is
controversial - as to who really is the owner of the
property. Of course, iyong pera naka-deposit iyan. Your
money will be returned to you if it turns out the claim is
frivolous. If the third party claim turns out to be valid, it will
be given to the real owner because the property that you
bought turned out to be owned by somebody who is not
your debtor.
377

Sec. 22. Adjournment of sale. By written

consent of the judgment obligor and obligee,
or their duly authorized representatives, the
officer may adjourn the sale to any date and
time agreed upon by them. Without such
agreement, he may adjourn the sale from day
to day if it becomes necessary to do so for
lack of time to complete the sale on the day
fixed in the notice or the day to which it was
adjourned. (24a)
When the purchaser of any personal

property, not capable of manual delivery,
pays the purchase price, the officer making
the sale must execute and deliver to the
purchaser a certificate of sale. Such
certificate conveys to the purchaser all the
rights which the judgment obligor had in such
property as of the date of the levy on
execution or preliminary attachment. (26a)
Q: What is the procedure for the sale of property capable of
manual delivery?
Suppose the auction sale was scheduled today. Hindi natapos

because there are many properties to be sold like 200 lots. Then
we can continue tomorrow.
A: When the property is CAPABLE OF MANUAL DELIVERY, and you

are the highest bidder, I will deliver the car to you, and execute and
deliver to you a certificate of sale. The certificate of sale should be
signed by the sheriff to prove that you are the highest bidder. And
with that certificate of sale, you can register that with the LTO.
Automatically, the LTO will transfer the ownership and the
registration of the car in your name.
Suppose we will continue next week. Then both parties must agree
by written consent of the judgment obligor and obligee if we will
postpone it to another date na mas malayo.
Q: Do you know why these things are very important?
A: Because you already advertised that it will be held on this day.
So any change on the date has to be strictly complied with. Thats
the reason behind these.
Q: What is the procedure for the sale of property NOT CAPABLE OF

MANUAL DELIVERY? Mga intangible assets?
A: There is nothing to physically give you. But according to Section
24, the officer making the same must execute and deliver to the
purchaser a certificate and that is actually tantamount to delivery
already.
Q: Now, what properties can be sold at public auction?

A: Its either personal property or real property. We are sure about
that.
Q: When you buy a personal property at an auction sale and the

sheriff executes a certificate of sale in your favor, do you become
the owner of the property?
TWO TYPES OF PERSONAL PROPERTY:

1)
2)
one capable of manual delivery; and

one not capable of manual delivery iyong mga
intangibles ba!
A: Both sections say, the sale conveys to the purchaser all the
rights which the judgment obligor have in such property as of the
date of the levy on execution. At the sale, you acquire all the rights
which the obligor had in such property. You become the owner
because you acquire the judgment obligors right of ownership
over such property.
Q: What is the procedure for the sale of personal property capable

of manual delivery and one not capable of manual delivery?
A: You have Section 23 and Section 24.
BUT suppose the obligor holding the property is not the owner of
the property although he has some right over the property and his
rights where sold, then you only acquire whatever rights he has
over the property. You do not acquire ownership. A spring cannot
rise higher than its source.
Q: When it comes to real property, what is the procedure?

A: The procedure is Section 25.
So lets go over there, conveyance to purchaser of personal
property capable of manual delivery. Like a car and appliance or
any other tangible object.
EXAMPLE: You are the defendant but you enjoy rights over the
property as usufructuary you are the beneficial owner of the
property but not the naked owner.
And your rights as
usufructuary were levied. I am the purchaser. Can I acquire naked
ownership? Of course NOT. I only acquire beneficial ownership. I
only acquire whatever right the debtor has over the property.
Sec. 23. Conveyance to purchaser of personal

property capable of manual delivery. When
the purchaser of any personal property,
capable of manual delivery, pays the
purchase price, the officer making the sale
must deliver the property to the purchaser
and, if desired, execute and deliver to him a
certificate of sale. The sale conveys to the
purchaser all the rights which the judgment
obligor had in such property as of the date of
the levy on execution or preliminary
attachment. (25a)
The SC made a commentary on that issue on the nature of the

sheriffs sale and one of which is the case of
LEYSON vs. TAADA 109 SCRA 66 [1981]
HELD: At a sheriffs sale they do not sell the land advertised to sell,
although that is a common acceptation, but they simply sell what
interest in that land the judgment debtor has; and if you buy his
interest, and it afterwards develops that he has none, you are still
liable on your bid, because you have offered so much for his
Sec. 24. Conveyance to purchaser of personal

property not capable of manual delivery.
378

interest in open market, and it is for you to determine before you

bid what is his interest in the property.
There is no right of redemption in personal property. That is only

recognized in real property. So if your (personal) property is sold at
public auction, and then there is a highest bidder, you cannot say,
Anyway, pwede ko namang bawiin iyon. NO, wala iyang bawi,
kanya na yan. But if the property sold at public auction is real
property, that is not kissing your land goodbye. You have one year
to redeem it. That is your last chance.
So, it is for you to determine what his interest is before you bid.
That is why you look at the sheriffs notice of sale, meron mang
warning ba: Notice to prospective bidders. You are advised to find
out whatever interest the debtor has.
For EXAMPLE: You buy the land and it turns out na hindi pala mayari iyong taong iyon, iba ang rights niya. Then you are to uphold his
rights, Ah, I will hold the sheriff liable! No you cannot. There is no
warranty here on ownership.
Q: Summary: If you are the highest bidder, when do you acquire

ownership of the property sold in a auction sale?
A: It DEPENDS whether the property sold is personal or real:
So, do not confuse this with private sale of propertywarranty

against evictionwala iyan sa sheriffs sale. The sheriff does not
warrant the ownership of the property. The law only warrants the
guarantee that you will acquire whatever interest he has. And if his
interest is less than what you expect, pasensha ka. This is a case of
CAVEAT EMPTOR let the buyer beware. That is the thing you have
to remember about action sale.
Sec. 25. Conveyance of real property;
certificate thereof given to purchaser and filed
with registry of deeds. Upon a sale of real
property, the officer must give to the
purchaser a certificate of sale containing:
a)
If it is PERSONAL PROPERTY, the title is transferred after

payment of the purchase price and delivery upon the
purchaser. Delivery is either physical or symbolic;
(Sections 23 & 24)
b)
If it is REAL PROPERTY, the title is transferred, not after

the auction sale, but after expiration of the right to
redeem. (Section 25)
There is no right of redemption under personal property. It can

only be exercised in real property.
Now, take note that the period to redeem is ONE YEAR FROM THE
DATE OF THE REGISTRATION of the certificate of sale in the office
of the registrar of deeds. It is NOT from the date of the auction
sale.
(a) A particular description of the real

property sold;
(b) The price paid for each distinct lot or
parcel;
(d) A statement that the right of redemption

expires one (1) year from the date of the
registration of the certificate of sale.
Under the old law, malabo eh: from the date of sale. Anong sale?
Date of the auction sale or date of the issuance of certificate of
sale? According to the SC, the date of the registration. That is the
start of the counting. Kaya nga if there is a sale in your favor, pag idelay mo ang registration, ikaw ang kawawa because the longer
you delay it, the redemption period is being stretched. Instead of
cutting after one year, period of redemption has not been cut off
kaya there must be a registration.
Such certificate must be registered in the

registry of deeds of the place where the
property is situated. (27a)
Under the present rule, the right of redemption expires after one
(1) year from the date of the registration of the certificate of sale.
Under the old law, it expires after twelve (12) months.
If the property sold at public auction is a piece of land (real

property), the sheriff will execute in your favor what is known as
the sheriffs CERTIFICATE OF SALE. Anong nakalagay diyan? It is
practically what a normal deed of sale provides the description of
the land, the property sold, the whole price paid, the lot if there
are different parcels, how much per parcel.
Q: Is the one year under the present rule and the 12 months
under the old rules the same?
The important paragraph is [d]: A statement that the right of

redemption expires one (1) year from the date of the registration of
the certificate of sale.
Thats why before, the redemption period for extrajudicial

foreclosure of mortgage is one year. And the redemption in
execution under Rule 39 is 12 months. So there is a difference. But
NOW, pareho na.
(c) The whole price paid by him;
A: NO, and we know that 12 months is 360 days. One month is 30

days times 12 is 360 days. But one year is 365 days. So they are not
the same.
Q: What is the main difference between a sale of personal property

under Section 23 and sale of real property under Section 25?
Thats why the old case of STATE INVESTMENT HOUSE when the SC
made the distinction between the one year period for mortgage
and the 12 months period under Rule 39 is already MEANINGLESS
because the one year period. NOW is uniform.
A: When the property sold at public auction is real property, the

debtor has one (1) year to redeem the property. Thats what you
call the RIGHT OF REDEMPTION from the purchaser. But if the
property sold at public auction is personal property, like cars or
appliances, there is no right of redemption.
Q: Can you attack the validity of an auction sale?
379

A: GENERAL RULE: NO, you cannot attack the auction sale on the
presumption that every fair sale is final. There is a presumption of
regular performance of duty by the sheriff.
If the property sold at public auction is a subject of a third party

claim under Section 16, the certificate of sale to the property is
issued subject to the outcome of the third party claim by a
stranger.
EXCEPTION: When an execution sale may be set aside:

1)
When it is shown from the nature of the irregularity or

from intrinsic facts injury resulted therefrom. (Navarro
vs. Navarro, 76 Phil. 122) Meaning, there were serious
irregularities committed by the officer in conducting the
sale like no publication, no notice, no prior levy, etc.;
2)
When the price obtained at the execution sale is

shockingly inadequate and it is shown that a better price
can be obtained at a resale. (Barrozo vs. Macadaeg, 83
Phil. 378) Meaning, the highest bid is shockingly
inadequate.
Sec. 27. Who may redeem real property so

sold. Real property sold as provided in the
last preceding section, or any part thereof
sold separately, may be redeemed in the
manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his successor in
interest in the whole or any part of the
property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner. (29a)
EXAMPLE: I owed you for P100,000 P100,000 ang

judgment! And what is levied is a brand new Mercedes
Benz. So sobra na yon na pambayad sa utang. But the
highest bid is P30,000. Just imagine the highest bid is
30,000, tapos meron pang deficiency judgment for
P70,000 of course, there is something wrong here. So,
that is an exception, no! That is, when the price obtained
at the execution sale is SHOCKINGLY INADEQUATE to the
senses and it is shown that a better price can be
obtained.
That is an important section.

Q: Who are entitled to redeem real property?
A: There are two (2):
Shocking to the senses means hindi naman yung the

difference is very slight.
1)
2)
EXCEPTION TO THE EXCEPTION: The rule that you can question the
validity of the auction sale if the price obtained is shockingly
inadequate applies ONLY when the property sold is PERSONAL
property. The exception does not apply when the property sold is
real property because if the property sold is a personal property,
there is no right of redemption. But if the property sold is real
property, you cannot complain because, anyway, you have one
year to pay and the redemption price is lower. So, you are not
really prejudiced. So why are you complaining? Thats what the SC
said in the case of
The judgment obligor or his successor-in-interest; and

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. He is
know as the REDEMPTIONER.
JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST

Judgment obligor is clear the defendant who lost the case the
defendant whose property was levied. Or, his successor-in-interest.
For EXAMPLE: During the one year period to redeem, the judgment
debtor died. So it could be his heirs, his children, his spouse who
could exercise the right to redeem because they step into his
shoes. Also, successor-in-interest would also refer to a person to
whom the obligor assigned or transferred his right to redeem.
RAMOS vs. PABLO 146 SCRA 5 [1986]

HELD: A reading of plaintiffs' (petitioners') complaint shows that
inadequacy of price was raised as one of the issues. Assuming that
the price was shockingly low, the same cannot vitiate the auction
sale for redemption would be comparatively easier.
Q: Can the defendant sell, aside from transferring, his right to

another person?
A: YES, because the right to redeem is property by itself. My right
to redeem is also property such as an interest to the real property
which can be the subject matter of a sale.
That is because the property sold in RAMOS is real property. Pero

kung personal property, I think it is really unfair. You lose the
property forever with a very small amount.
EXAMPLE: Alright, may property ako worth P5 million. Na-sheriff

for P2 million. Wala na, hindi ko na kaya. Ibenta ko sa iyo for P3
million. Give me P1 million cash at ikaw na ang mag redeem sa
purchaser. Ginansiya ka pa rin di ba? P5 million gud iyon. So I can
sell, and once I sell the right to redeem to you, you are classified as
successor-in-interest for the judgment obligor.
Sec. 26. Certificate of sale where property

claimed by third person. When a property sold
by virtue of a writ of execution has been
claimed by a third person, the certificate of
sale to be issued by the sheriff pursuant to
sections 23, 24 and 25 of this Rule shall make
express mention of the existence of such
third-party claim. (28a)
REDEMPTIONER
Q: Define redemptioner.
380

A: A redemptioner is a creditor having a lien by virtue of an

attachment, judgment or mortgage on the property sold, or on
some part thereof, subsequent to the lien under which the property
was sold.
one of five children, siguro mayaman, redeemed the properties of

their father.
Take note that only one of the heirs redeemed the entire property
from the judgment creditor- obligee. And one of the issues raised is
whether one heir alone has the personality to redeem from the
creditor the property of the estate when there is an administrator.
Remember, ha the legal representative under the law, is the
administrator.
ILLUSTRATION: Suppose there is a title owned by X and he has four

(4) creditors. Lets say the property is worth P10 million and he
owes A for P2 million. So A levied the property. Now theres
another judgment in favor of B and there is no other property, ito
na lang. So ang ginawa ni B, tinatakan niya another P2 million.
ISSUE #1: So, who has the right to redeem? The heir or the
administrator?
Under the Law on Land Titles and Deeds, B has inferior rights. In
other words, the right of A is superior to the right of B. A has no
obligation to respect the right of B but B is obliged to respect the
right of A. And Assuming that there is a third creditor C for
another P2 million. Thus, subsequent holder din si C. If D is also a
creditor, apat na sila.
HELD: The HEIR has the right to redeem. At the moment of the
decedents death, the heirs start to own the property, subject to
the decedents liabilities. In fact, they may dispose of the same
even while the property is under administration. If the heirs may
dispose of their shares in the decedents property even while it is
under administration with more reason should the heirs be allowed
to redeem redeemable properties despite the presence of an
administrator.
Of course, the right of A is superior. He levies the property, may

one year to redeem. Sabi ni X, Wala na akong property, so ano
pang pakialam ko kay B? Suppose X will not redeem, so A
becomes the owner after one year. What happens to B, C and D?
Bura lahat kayo because you are underneath. A has no obligation to
respect your liens.
ISSUE #2: Must the one redeeming prove that the other co-heirs,
the administrator and the court expressly agreed to the
redemption? Is it necessary for him to get their consent?
In other words, A acquires the entire property for only P2M

because hindi na interesado si X. Shempre si B interesado. So B will
pay A within the redemption period para matanggal si A. Yung
utang ni X na P2M binayaran niya kay A. So P4 million na ang hawak
ni B. And B will now be the number one. B will now acquire the
property. Pero sabi ni C, Hindi pwede iyan, lugi ako! Kasi pagnaacquire na ni B ang property, patay na naman si C and D. Sabi ni C,
Bababuyin, ah este Babayaran kita (B)! O ayan ang P4 million.
Saksak mo sa baga mo! D can do the same thing to C.
HELD: There is NO NEED for such prior approval. While it may

have been desirable, it is not indispensable. There is likewise
nothing in the records to indicate that the redemption was not
beneficial to the estate. Anyway, the estate was benefited. The
property was returned to the estate rather than acquired by the
creditors.
ISSUE #3: How can one specific heir redeem alone when his
interest in the estate is not fixed and determinate pending the
order of distribution by the court? He is just a 1/5 owner and then
he is redeeming everything, how can that be done?
Iyan ang tinatawag na redemptioners people who have lien

subsequent because that is your only way to protect your lien over
the property. Anyway, even if D will pay everybody, hindi pa rin lugi
because the property is worth P10 million. But he spent P8 million
because he had to buy or redeem it from people who are ahead of
him. That is the illustration of redemptioners, they have a
personality or a right to redeem the property from whoever is
ahead of him in order to protect his lien over the property because
if he will not redeem, the quickest one will acquire the property
free from any lien or encumbrance. Eh, kung wala na yung
property? Patay na ako. What property will I get to satisfy the
account wala na akong property, isa nalang. That is the rule on
redemption. That is what Section 27 is all about.
HELD: It may be true that the interest of a specific heir is not yet
fixed and determinate pending the order of distribution BUT,
nonetheless, the heirs interest in the preservation of the estate
and the recovery of its properties is greater than anybody elses,
definitely more than the administrators who merely holds it for
the creditors, the heirs, and the legatees.
ISSUE #4: Can we not consider the administrator as the judgmentdebtor himself and the only one successor-in-interest?
HELD: NO. The estate of the deceased is the judgment-debtor and
the heirs who will eventually acquire that estate should not be
prohibited from doing their share in its preservation.
Take note that redemptioners cannot redeem if the judgment

debtor redeems.
(For Review Class) Now, let us discuss the case of PALICTE vs.
REMOLITE, infa. This case is instructive on the issue of right of
redemption under Rule 39 in relation to special proceedings the
estate of deceased person. This is what happened:
ISSUE #5: So, sabi ng redeeming heir, Okey, so now let the
property be registered in my name because pera ko man ang
ginamit. I spent my money in paying the property including the
shares of my brothers and sisters who have no money. Is the
redeeming heir correct?
PALICTE vs. REMOLETE 154 SCRA 132 [1987]

HELD: NO. The motion to transfer the titles of the properties to
the name of the redeeming heir cannot prosper at this time.
Otherwise, to allow such transfer of title would amount to a
distribution of the estate. That is tantamount to premature
distribution of the estate. You cannot distribute the estate in favor
of one heir immediately.
FACTS: A man lost a case and his properties were levied. So lets
say his properties were levied for P1 million. But during the 1-year
period of redemption, he died. And he is survived by 5 children.
And there is an administrator appointed by the court to administer
the properties of the deceased. During the one period to redeem,
381

So, what is the solution? The other heirs are, therefore, given a
six-month period to join as co-redemptioners in the redemption
made by the petitioner before the motion to transfer titles to the
latters name may be granted.
ILLUSTRATION: Brown Sugar is a judgment obligor. She has four

creditors (A, B, C, and D) and all of them obtained judgment against
her and all of them levied on the same property. Brown Sugar is
given one year from the registration of the sale to redeem it from
A. Now, suppose SUGAR cannot redeem, B will be the one to
redeem because the first redemptioner and the judgment obligor
have one year to redeem from the date of registration. That is what
Section 28 says the judgment obligor, or redemptioner. Now, C is
given 60 days to redeem. After that, wala ng right. Suppose C was
able to redeem, D has another 60 days to redeem from C.
So meaning, if the other heirs are given 6 months, hindi nyo

mabayaran, pwede na yan, kasi pera man niya ang ginamit.
Sec. 28. Time and manner of, and amounts
payable on, successive redemptions; notice to
be given and filed. The judgment obligor, or
redemptioner, may redeem the property
from the purchaser, at any time within one
(1) year from the date of the registration of
the certificate of sale, by paying the
purchaser the amount of his purchase, with
one per centum per month interest thereon
in addition, up to the time of redemption,
together with the amount of any assessments
or taxes which the purchaser may have paid
thereon after purchase, and interest on such
last named amount at the same rate; and if
the purchaser be also a creditor having a
prior lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien, with interest.
Q: So what is the period of redemption?

A: There are two periods of redemption: The judgment obligor and
first redemptioner are given ONE YEAR from the date of
registration of the certificate of sale to redeem and after that all
subsequent redemptioners are given 60 days.
So the second redemptioner can redeem it within 60 days. So,
within 60 days, the 3rd redemptioner can redeem it. Pasa yan, in
order that the redemptioner can protect their lien over the
property. So, the redemption period is ONE YEAR and 60 DAYS
respectively.
Q: Now, suppose Brown Sugar or B would like to redeem the
property from A. How much will the property be redeemed?
A: Under Section 28, the purchase or the bid price for the property
PLUS one percent per month interest, and reimbursement for taxes
of the property with interest also. But definitely, the redemption
price = the bid price + 1% interest month. So, if you will redeem
after one year, the bid price and 12% of the bid price.
Property so redeemed may again be

redeemed within sixty (60) days after the last
redemption upon payment of the sum paid
on the last redemption, with two per centum
thereon in addition, and the amount of any
assessments or taxes which the last
redemptioner may have paid thereon after
redemption by him, with interest on such
last-named amount, and in addition, the
amount of any liens held by said last
redemptioner prior to his own, with interest.
The property may be again, and as often as a
redemptioner is so disposed, redeemed from
any previous redemptioner within sixty (60)
days after the last redemption, on paying the
sum paid on the last previous redemption,
with two per centum thereon in addition, and
the amounts of any assessments or taxes
which the last previous redemptioner paid
after the redemption thereon, with interest
thereon, and the amount of any liens held by
the last redemptioner prior to his own, with
interest.
ILLUSTRATION: So kung P1 million ang bid price plus + P120,000

(1%/month) = P1.12 million
Now there are two interesting cases here which I want you to
remember. The conflicting ruling in PNB vs. CA (140 SCRA 360) and
the case of SY vs. CA (172 SCRA 125). The two cases involved a
foreclosure of mortgage not execution but the Rules of Court
applies. Under the extra-judicial foreclosure of mortgage Act 3135,
the provision of the Rules of Court are also applicable to
redemption in a foreclosure sale. So the provision in Section 28 also
applies to the redemption during an extrajudicial foreclosure of
property.
PNB vs. CA 140 SCRA 360 [1985]
FACTS: Suppose I will borrow money from the bank and stipulate
an interest at 24% per annum. During the auction sale, it was sold
to the bank. Within one year, you approach me, gusto mo na iredeem. Magkano ang bid priceP2M plus interest of 2% per
month for the next seven or eight months. Sabihin ng debtor, No,
1% lang. Di ba nakalagay sa law 1% lang. Pero ang usapan natin is
3% monthly.
Written notice of any redemption must be

given to the officer who made the sale and a
duplicate filed with the registry of deeds of
the place, and if any assessments or taxes are
paid by the redemptioner or if he has or
acquires any lien other than that upon which
the redemption was made, notice thereof
must in like manner be given to the officer
and filed with the registry of deeds; if such
notice be not filed, the property may be
redeemed without paying such assessments,
taxes, or liens. (30a)
ISSUE: So which prevails - the 1% per month under the Rules of

Court or the 2% per month as stipulated in the promissory note?
HELD: The 1% of the Rules of Court prevails. Why? The rights of the
debtor or creditor, the bank for example, under the promissory
note, or even under the mortgage law, is only good up to the
auction sale. From the moment the auction sale is finished and
there was already a bid, we are now talking of the one year period
382

to redeem. So the rate in the promissory note is no longer

applicable.
in this and the last preceding sections may be

made to the purchaser or redemptioner, or
for him to the officer who made the sale.
(31a)
The case of PNB was somehow modified by the SC in the

subsequent case of Sy vs. CA (172 SCRA 125) where the facts are
identical.
Q: Suppose Tikla redeems the property from Joshua. If the sheriff

will execute in favor of Tikla a certificate of redemption, to whom
should Tikla pay?
SY vs. CA 172 SCRA 125 [1989]

FACTS: They borrowed money from the bank at 2% a month and
they failed to pay the loan. Thus, there was a foreclosure of
mortgage then there was an execution of sale.
A: The law says she can pay directly to the purchaser, the
redemptioner or the person who made the sale.
Sec. 30. Proof required of redemptioner. A
redemptioner must produce to the officer, or
person from whom he seeks to redeem, and
serve with his notice to the officer a copy of
the judgment or final order under which he
claims the right to redeem, certified by the
clerk of the court wherein the judgment or
final order is entered; or, if he redeems upon
a mortgage or other lien, a memorandum of
the record thereof, certified by the registrar
of deeds; or an original or certified copy of
any assignment necessary to establish his
claim; and an affidavit executed by him or his
agent, showing the amount then actually due
on the lien. (32a)
ISSUE: Within the one year period of redemption, pila man ang
interest? The debtor will say 1% but according to the bank, it is 2%
as stipulated. Which will prevail?
HELD: The 3% a month stipulated under the mortgage contract
prevails. Why? Because of a special law Section 78 of the General
Banking Act R.A. 337. Between Section 28 of Rule 39 and Section 78
of the General Banking Act, the latter prevails because it is a special
law. It applies to banks.
The General Banking Act partakes of the nature of an amendment
to the mortgage law in so far as the redemption price is concerned.
When the mortgagee or the creditor is a bank or banking credit
institution, Section 6 of the mortgage law in relation to Section 28
of Rule 39 of the Rules of Court is inconsistent with Section 78 of
the General Banking Act. So the bank rate prevails.
When the ORIGINAL OWNER wants to redeem the property from B,

there is NO NEED for him to prove his right as a judgment debtor.
The judgment debtor has the automatic right to redeem.
Paano nangyari ito? I have only one single explanation. Hindi nakita
ng mga abogado ng PNB ang provision na iyon. They did not
research very well. They failed to cite the provision of the General
Banking Act which authorizes the bank to continue charging the
higher rate even during the redemption period. Ginamit ng SC ang
general rule eh. So mas magaling ang lawyer nung bank in the
second case because they were able to detect an exception under
the general rule.
But when it is B, C or D (REDEMPTIONERS) who wants to redeem,

they MUST PROVE to the sheriff that they are qualified to redeem.
They must prove their status because not every person in the world
has the right to redeem. The right to redeem is only given to the
debtor, the successor-in-interest or the redemptioner. Thus, you
must prove your personality to effect redemption.
You know, if you are a lawyer of a bank, you must know all the laws
regarding banks. Just the same, if you are a labor lawyer, you
master all the labor laws. But if you are a bar candidate, you master
all laws! Yaaaann!
Sec. 31. Manner of using premises pending

redemption; waste restrained. Until the
expiration of the time allowed for
redemption, the court may, as in other
proper cases, restrain the commission of
waste on the property by injunction, on the
application of the purchaser or the judgment
obligee, with or without notice; but it is not
waste for a person in possession of the
property at the time of the sale, or entitled to
possession afterwards, during the period
allowed for redemption, to continue to use it
in the same manner in which it was
previously used; or to use it in the ordinary
course of husbandry; or to make the
necessary repairs to buildings thereon while
he occupies the property. (33a)
Sec. 29. Effect of redemption by judgment

obligor, and a certificate to be delivered and
recorded thereupon; to whom payments on
redemption made. If the judgment obligor
redeems, he must make the same payments
as are required to effect a redemption by a
redemptioner, whereupon, no further
redemption shall be allowed and he is
restored to his estate. The person to whom
the redemption payment is made must
execute and deliver to him a certificate of
redemption acknowledged before a notary
public or other officer authorized to take
acknowledgments of conveyances of real
property. Such certificate must be filed and
recorded in the registry of deeds of the place
in which the property is situated, and the
registrar of deeds must note the record
thereof on the margin of the record of the
certificate of sale. The payments mentioned
PROBLEM: Suppose X is the debtor, A is the purchaser because the

highest bidder could be any person. During the 1-year period to
redeem, who is in possessor of the property? The purchaser or the
debtor?
A: The DEBTOR. During the one-year period, iyo pa rin yan. The
buyer or the purchaser cannot take over during the institution. He
383

has to wait for the one-year period to expire before he can take
over. Therefore, X continues to occupy the property. He continues
to use it the same manner it was previously used. Use it in the
ordinary course of husbandry, to make the necessary repairs to
buildings thereon while he occupies the property.
for redemption has expired, the last

redemptioner is entitled to the conveyance
and possession; but in all cases the judgment
obligor shall have the entire period of one (1)
year from the date of the registration of the
sale to redeem the property. The deed shall
be executed by the officer making the sale or
by his successor in office, and in the latter
case shall have the same validity as though
the officer making the sale had continued in
office and executed it.
Q: Suppose 8 months has passed. Sabi ni X, Mukhang wala na

akong pag-asa. Hindi ko na ito mababayaran. Sige, wasakin ko na
lang ang property. Sirain ko na lang. I will make a waste of the land.
I will cut all the coconut trees. I will destroy all the improvements.
Para pag-take-over mo, wala na. Bwahahaha! What is the remedy
of A?
Upon the expiration of the right of

redemption, the purchaser or redemptioner
shall be substituted to and acquire all the
rights, title, interest and claim of the
judgment obligor to the property as of the
time of the levy. The possession of the
property shall be given to the purchaser or
last redemptioner by the same officer unless
a third party is actually holding the property
adversely to the judgment obligor. (35a)
A: He can ask the court to issue a writ of injunction according to

Section 31 an injunction to restrain the commission of waste on
the property. So, you can also stop him by injunction.
Sec. 32. Rents, earnings and income of
property pending redemption. The purchaser
or a redemptioner shall not be entitled to
receive the rents, earnings and income of the
property sold on execution, or the value of
the use and occupation thereof when such
property is in the possession of a tenant. All
rents, earnings and income derived from the
property pending redemption shall belong to
the judgment obligor until the expiration of
his period of redemption. (34a)
If the period to redeem expires, no more right of redemption. What

will happen? The sheriff now will now execute in favor of the
highest bidder or purchaser what is known as the final deed of sale
or DEED OF CONVEYANCE. Remember that there are two
documents here which the sheriff executes in case of real property.
Section 32 is the continuation of Section 31.
Q: What are they (two documents which the sheriff executes in

case of real property)?
Q: My property was sold on execution in your favor. But my

property earns income. May mga tenants diyan na nagbabayad ng
renta. During the one-year period, who will get the rentals? The
purchaser or the debtor?
A: The following:
A: The DEBTOR. He continues to receive all the earnings. For

defensive purposes, he is still the owner. Do not say that, Ako ang
highest bidder, akin ang income! (Gunggong!) You wait for the
one-year redemption period to expire to get the income.
Under the OLD rules, the 1964 Rules, during the one-year period to
redeem, the debtor/defendant continues to get the income of the
property but when the creditor may opt: Your Honor, akin ang
income ha? Thats allowed by the old law. But everything is
deductible also form the redemption price. NGAYON wala na yan.
100% the debtor is the one enjoying the income over the property.
That is a major amendment introduced by the 1997 Rules.
1)
CERTIFICATE OF SALE. After the auction sale, he will

execute in your favor the certificate of sale under Section
25, by the time you register that, you start counting the
one year.
2)
DEED OF CONVEYANCE. If after one year there is no

redemption, a deed of conveyance is executed. (Section
33)
Q: Which of the two documents transfers the ownership to the

purchaser?
A: Only the DEED OF CONVEYANCE transfers title to the property.
The certificate of sale one year ago does not transfer the
ownership of the land to the purchaser. It is only a memorial that
you are the highest bidder, that you paid so much and that you are
the purchaser but there is no transfer of ownership. Only the final
deed of sale in Section 33 conveys title to property. So do not
confuse the sheriffs certificate of sale under Section 25 with the
final deed of sale under Section 33. Although in an extra-judicial
foreclosure, there is no need of deed of sale. Only affidavit of
consolidation is needed under the mortgage law.
Q: Now, what happens if after the lapse of one year there is no

redemption? What is the next step?
A: That is Section 33:
Sec. 33. Deed and possession to be given at
expiration of redemption period; by whom
executed or given. If no redemption be made
within one (1) year from the date of the
registration of the certificate of sale, the
purchaser is entitled to a conveyance and
possession of the property; or, if so
redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time
Q: How can the sheriff give it to you? Suppose the debtor refuse to
vacate, is there a need to file another action of unlawful detainer
or forcible entry?
A: There is no more need of filing another action to eject the
former owner. The procedure is, the purchaser can ask the court to
384

issue a WRIT OF POSSESSION under the Property Registration

Decree to take over the property.
the same force and effect as an original

judgment would have as of the date of the
revival and no more. (36a)
Now, another interesting case about this stage in relation to

property exempted from execution, is the case of
Q: Suppose A is the highest bidder. There is a third-party claim

which turned out to be valid. So the property is removed from A.
So, paano naman si A? Nakabayad gud siya diyan. Paano niya
babawiin ang kuwarta niya?
GOMEZ vs. GEALONE 203 SCRA 474 [1991]

FACTS: The property of the defendant was levied and sold in a
public auction to the highest bidder. One year after, there was no
redemption. Then after the period has expired, here comes the
defendant questioning the auction sale because the property was
exempt from execution and the property really turned out to be
exempt from execution.
A: As options under Section 34:

1)
2)
ISSUE: Is there a deadline for a judgment debtor to claim

exemption from execution of his property? Can the debtor still
raise the issue that the property is exempt from execution after the
expiration of the redemption period.
Recover the money from obligee (A here is not the

judgment obligee); or
Have the judgment revived in your name and you look
for other properties of the obligor to execute because:
a)
b)
c)
d)
HELD: The rules do not expressly mention up to what point

although the rules of court does not prescribe the period within
which to claim the exemption, the rule is, nevertheless, well-settled
that the right of exemption must be claimed by the debtor himself
at the time of the levy or within a reasonable time thereafter.
What is reasonable time?
e)
f)
He lost possession of the property;

He was evicted;
There was irregularity of the proceedings;
The judgment has been reversed or set aside on
appeal;
The property sold was exempt from execution; or,
A third person has validity of his claim of the
property.
Thats one way of property being removed from the purchaser.

Your remedy is to recover the money from the obligee ASSUMING
that the obligee is different from the purchase. Or have the
judgment revived in your name hahabol ka na lang sa ibang
properties ng debtor. Thats the procedure alright.
REASONABLE TIME, for purposes of the law on exemption, does

not mean a time after the expiration of the one-year period for
judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution
and defeat the very purpose of execution - to put an end to
litigation.
Sec. 35. Right to contribution or

reimbursement. When property liable to an
execution against several persons is sold
thereon, and more than a due proportion of
the judgment is satisfied out of the proceeds
of the sale of the property of one of them, or
one of them pays, without a sale, more than
his proportion, he may compel a contribution
from the others; and when a judgment is
upon an obligation of one of them, as
security for another, and the surety pays the
amount, or any part thereof, either by sale of
his property or before sale, he may compel
repayment from the principal. (37a)
We now rule that claims for exemption from execution of

properties under Section 13 must be presented before its sale on
execution by the sheriff.
Meaning, you raise the issue of exemption at the time of the levy
but not later that the auction sale. There is a deadline because if
you claim exemption after that, masyadong ng atrasadotoo late
na ba. Thus, the claim for exemption must be raised. Thats the
ruling in the case of GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale not effective;
revival of judgment. If the purchaser of real
property sold on execution, or his successor
in interest, fails to recover the possession
thereof, or is evicted therefrom, in
consequence of irregularities in the
proceedings concerning the sale, or because
the judgment has been reversed or set aside,
or because the property sold was exempt
from execution, or because a third person has
vindicated his claim to the property, he may
on motion in the same action or in a separate
action recover from the judgment obligee the
price paid, with interest, or so much thereof
as has not been delivered to the judgment
obligor; or he may, on motion, have the
original judgment revived in his name for the
whole price with interest, or so much thereof
as has been delivered to the judgment
obligor. The judgment so revived shall have
Q: The judgment is against A, B, and C, solidary debtors. A paid

everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim
reimbursement from the principal debtor. Thats under the Law on
Obligations and Contractsright to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are the
so-called provisions of the rules in aid of execution remedies in
aid of execution because execution is a difficult process. The
purpose of the remedies in aid of execution is to help the obligee
realize the fruits of the judgment.
385

It is sometimes very hard to grasp out properties of the obligor

especially if he knows how to hide them by conveying remedies to
assist him in locating the properties of the defendant and these
remedies in aid of execution are found in Section 36 to Section 43.
And the most famous are those found in Sections 36 and 37:
EXAMPLE: The sheriff did not find any property of the obligor. So
the obligee can file a motion under Section 36 for examination of
the obligor under oath hoping that in the course of asking
questions, he might make some admissions. And the procedure is
the same as in deposition but this is only done right inside the
courtroom.
Sec. 36. Examination of judgment obligor

when judgment unsatisfied. When the return
of a writ of execution issued against property
of a judgment obligor, or any one of several
obligors in the same judgment, shows that
the judgment remains unsatisfied, in whole
or in part, the judgment obligee, at any time
after such return is made, shall be entitled to
an order from the court which rendered the
said judgment, requiring such judgment
obligor to appear and be examined
concerning his property and income before
such court or before a commissioner
appointed by it, at a specified time and place;
and proceedings may thereupon be had for
the application of the property and income of
the judgment obligor towards the satisfaction
of the judgment. But no judgment obligor
shall be so required to appear before a court
or commissioner outside the province or city
in which such obligor resides or is found.
(38a)
On the other hand under Section 37, you can also examine people
whom you believe owe the obligor such as his debtors, or those
holding his property, so that you can discover all his collectibles
and ask that the same be garnished. So this time, it is the obligor
of the judgment obligor who will be examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a
sum of money. The obligee can file a motion under Section 37 to
subpoena Kenneth, Thadd and Francis to find out if it is true that
they are indebted to the judgment obligor. In this case, the obligee
can as the court to garnish the money.
So, those are the objects of Sections 36 and 37. Of course there are
others, just go over them.
NOTE: Actually a mode of discovery.
Sec. 38. Enforcement of attendance and
conduct of examination. A party or other
person may be compelled, by an order or
subpoena, to attend before the court or
commissioner to testify as provided in the
two preceding sections, and upon failure to
obey such order or subpoena or to be sworn,
or to answer as a witness or to subscribe his
deposition, may be punished for contempt as
in other cases. Examinations shall not be
unduly prolonged, but the proceedings may
be adjourned from time to time, until they
are completed. If the examination is before a
commissioner, he must take it in writing and
certify it to the court. All examinations and
answers before a court or commissioner must
be under oath, and when a corporation or
other juridical entity answers, it must be on
the oath of an authorized officer or agent
thereof. (40a)
Sec. 37. Examination of obligor of judgment

obligor. When the return of a writ of
execution against the property of a judgment
obligor shows that the judgment remains
unsatisfied, in whole or in part, and upon
proof to the satisfaction of the court which
issued the writ, that a person, corporation, or
other juridical entity has property of such
judgment obligor or is indebted to him, the
court may, by an order, require such person,
corporation, or other juridical entity, or any
officer or member thereof, to appear before
the court or a commissioner appointed by it,
at a time and place within the province or
city where such debtor resides or is found,
and be examined concerning the same. The
service of the order shall bind all credits due
the judgment obligor and all money and
property of the judgment obligor in the
possession or in the control of such person,
corporation, or juridical entity from the time
of service; and the court may also require
notice of such proceedings to be given to any
party to the action in such manner as it may
deem proper. (39a)
Section 38 is the continuation of Section 37. If the judgment

obligor, or Kenneth, Thad and Francis refuse to comply with the
subpoena, they can be punished for contempt.
Sec. 39. Obligor may pay execution against
obligee. After a writ of execution against
property has been issued, a person indebted
to the judgment obligor may pay to the
sheriff holding the writ of execution the
amount of his debt or so much thereof as
may be necessary to satisfy the judgment, in
the manner prescribed in section 9 of this
Rule, and the sheriff's receipt shall be a
sufficient discharge for the amount so paid or
directed to be credited by the judgment
obligee on the execution. (41a)
So under Section 36, you can ask the court to render judgment to
allow you to subpoena the obligor and take the witness stand
subject to questioning so that you can discover where his
properties are. So in effect, Section 36 is related to modes of
discovery. This is actually a mode of discovery. This is a type of
deposition taking. It is related to the subject of deposition taking
where the discovery of the witness stand to effect execution.
Here, there is a change of the party creditor. The best example is

garnishment from a bank. B is the debtor of the judgment obligor.
386

If B, instead of paying the judgment obligor, will pay the judgment

creditor, B is no longer indebted to the judgment obligor.
that the judgment obligor has an interest in

real estate in the place in which proceedings
are had, as mortgagor or mortgagee or
otherwise, and his interest therein can be
ascertained without controversy, the receiver
may be ordered to sell and convey such real
estate or the interest of the obligor therein;
and such sale shall be conducted in all
respects in the same manner as is provided
for the sale of real estate upon execution,
and the proceedings thereon shall be
approved by the court before the execution
of the deed. (44a)
Sec. 40. Order for application of property and

income to satisfaction of judgment. The court
may order any property of the judgment
obligor, or money due him, not exempt from
execution, in the hands of either himself or
another person, or of a corporation or other
juridical entity, to be applied to the
satisfaction of the judgment, subject to any
prior rights over such property.
If, upon investigation of his current income
and expenses, it appears that the earnings of
the judgment obligor for his personal services
are more than necessary for the support of
his family, the court may order that he pay
the judgment in fixed monthly installments,
and upon his failure to pay any such
installment when due without good excuse,
may punish him for indirect contempt. (42a)
EXAMPLE: The obligor turns out to have an interest in real property

as a mortgagee, or he has a right to redeem, or right to foreclose,
or right to repurchase. The obligee can levy on these rights because
these rights are property rights by themselves. This time, it is not
the property which is sold but your interest.
Sec. 43. Proceedings when indebtedness
denied or another person claims the property.
If it appears that a person or corporation,
alleged to have property of the judgment
obligor or to be indebted to him, claims an
interest in the property adverse to him or
denies the debt, the court may authorize, by
an order made to that effect, the judgment
obligee to institute an action against such
person or corporation for the recovery of
such interest or debt, forbid a transfer or
other disposition of such interest or debt
within one hundred twenty (120) days from
notice of the order, and may punish
disobedience of such order as for contempt.
Such order may be modified or vacated at
any time by the court which issued it, or by
the court in which the action is brought, upon
such terms as may be just. (45a)
If upon investigation of his current income and expenses, it appears

that the earnings of the judgment obligor for his personal services
are more than necessary for the support of his family, the court
may order that he pay the judgment obligee in fixed monthly
installments, and upon his failure to pay any such installment when
due without good excuse, may punish him for indirect contempt.
Q: Can the salary of an employee be garnished?
A: Yes IF there is excess for support of his family. (Section 40)
Section 40 related to Section 13, paragraph [i] properties exempt
from execution:
(i) So much of the salaries, wages, or earnings
of the judgment obligor for his personal
services within the four months preceding
the levy as are necessary for the support of
his family;
EXAMPLE: The obligee cannot find any property of the obligor. But
there is a rumor that Pong owes the obligor a sum of money. Upon
examination, Pong denies indebtedness. But the obligee believes
that he has evidence that Pong owes the obligor money. In this
case, the obligee can ask the court that he be allowed to file a
collection case against Pong on behalf of the obligor.
Normally, you cannot levy on the earnings of a person which he

needs for support of his family. But actually, it is not the entire
earnings because if youre earning a lot, it is more than sufficient
for your family. So the excess of your income can be garnished
under Section 40.
Sec. 41. Appointment of receiver. The court
may appoint a receiver of the property of the
judgment obligor; and it may also forbid a
transfer or other disposition of, or any
interference with, the property of the
judgment obligor not exempt from execution.
(43a)
Q: Can the obligee considered as a real party in interest in this

case?
A: YES. The obligee is now considered as a representative party.
Section 43 is an example of the phrase, or a party authorized by
law or these Rules under Rule 3, Section 3:
Sec. 3. Representatives as parties. x x x x x A
representative may be a trustee of an express
trust, a guardian, an executor or
administrator, or a party authorized by law or
these Rules. x x x x x x
The court may appoint a receiver who is an officer of the court who
will manage the property of the litigants pending litigation. This
remedy is found under Rule 59 on Receivership. The purpose of
receivership is to preserve the property by placing it in the hands of
the court to remove it from the control of a party because a party
may dispose of the property.
SATISFACTION OF JUDGMENT
Sec. 42. Sale of ascertainable interest of

judgment obligor in real estate. If it appears
Sec. 44. Entry of satisfaction of judgment by

clerk of court. Satisfaction of a judgment shall
387

be entered by the clerk of court in the court

docket, and in the execution book, upon the
return of a writ of execution showing the full
satisfaction of the judgment, or upon the
filing of an admission to the satisfaction of
the judgment executed and acknowledged in
the same manner as a conveyance of real
property by the judgment obligee or by his
counsel unless a revocation of his authority is
filed, or upon the endorsement of such
admission by the judgment obligee or his
counsel on the face of the record of the
judgment. (46a)
VITAL-GOSON vs. CA 212 SCRA 235 [1992] (en banc)

ISSUE: Whether or not a judgment creditor is estopped from
appealing or seeking modification of a judgment which has been
executed at his instance.
HELD: It depends upon the nature of the judgment as being
indivisible or not. This is the doctrine laid down by this Court in a
case decided as early as 1925, Verches v. Rios, where the judgment
is INDIVISIBLE, acceptance of full satisfaction of the judgment
annihilates the right to further prosecute the appeal; and that even
partial execution by compulsory legal process at the instance of the
prevailing party, places said party in estoppel to ask that the
judgment be amended. Indivisible means either you accept it as
correct or you appeal. But you can not have your cake and eat it
too.
Sec. 45. Entry of satisfaction with or without

admission. Whenever a judgment is satisfied
in fact, or otherwise than upon an execution,
on demand of the judgment obligor, the
judgment obligee or his counsel must execute
and acknowledge, or indorse, an admission of
the satisfaction as provided in the last
preceding section, and after notice and upon
motion the court may order either the
judgment obligee or his counsel to do so, or
may order the entry of satisfaction to be
made without such admission. (47a)
Where the judgment is DIVISIBLE, estoppel should not operate

against the judgment creditor who causes implementation of a part
of the decision by writ of execution. This is the clear import of
Verches .and the precedents therein invoked. The principle is fully
consistent not only with the opinion that acceptance of payment of
only the uncontroverted part of the claim should not preclude the
plaintiff from prosecuting his appeal, to determine whether he
should not have been allowed more, but also with logic and
common sense. In other words, if a judgment is divisible, there is
no prohibition.
Q: What does satisfaction of judgement mean?

EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or
more causes of action I am satisfied with one cause but I am not
with the other. So, my appeal is only on the 2nd cause of action
where the award should be higher. I am not appealing in the first
cause of action and the defendant did not also appeal. So I can
move to execute that portion of judgment, as far as the first cause
of action is concerned and continue with my appeal on the second.
This is a divisible judgment. This is allowed.
A: SATISFACTION OF JUDGMENT is the compliance with or

fulfillment of the mandate thereof (31 Am. Jur. 354).
Execution is not the same as satisfaction. Execution is the method
of enforcement of a judgment. Satisfaction refers to compliance
with or fulfillment of the mandate of judgment. Normally,
execution precedes satisfaction. But you can satisfy a judgment
without execution by simply paying voluntarily. And when the
judgment is satisfied, it has to be recorded the manner of which is
found in Sections 44 and 45 either the sheriff himself will record
fully satisfied, or, the creditor will file an admission that the
judgment is fully satisfied, or, the debtor on motion will ask that it
be recorded that he has already paid.
PROBLEM: Plaintiff sues for P1 million damages. The court gave an

award of P500,000 only (one-half the damages sued for).
Defendant did not appeal because he is satisfied with the
judgement. Meaning, he accepts the liability of up to P500,000,
Judgment is good. Plaintiff, however, is not satisfied, It should
be P1 million, so I will appeal. He believes that even if he loses the
appeal, he is insured as to the P500,000.
Q: Who may compel satisfaction of judgment?

A: Satisfaction of judgment may be compelled by the judgmentcreditor by means of execution, or by the judgment-debtor by
means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236)
Q: Can plaintiff move for the satisfaction of P500,000 and let the
other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with respect to the
first half. To my mind, this is a DIVISIBLE judgment since defendant
accepts it and even if plaintiff loses appeal, the former is still liable
up to P500,000. So the plaintiff might as well claim it now for it is
final insofar as the defendant is concerned while plaintiffs appeal
is with respect to the balance. This is a possibility under the ruling
in VITAL-GOSON.
Now, here is an interesting question which has not yet been asked
in the Bar. They were expecting it as early as 2 years ago.
Q: Can a plaintiff appeal from the judgment and at the same time
move for execution of the same? Can you do both without being
self-contradictory? Can you demand satisfaction of judgment and
at the same time
appeal said judgment?
Sec. 46. When principal bound by judgment

against surety. When a judgment is rendered
against a party who stands as surety for
another, the latter is also bound from the
time that he has notice of the action or
proceeding, and an opportunity at the
surety's request to join in the defense. (48a)
A: PRIOR CASES say, you cannot do it because it is inconsistent.

When you comply with the satisfaction of judgment, you are
already accepting the correctness of judgment. But when you are
appealing it, you do not accept the same. That was the old ruling
which was MODIFIED in the case of
388

When there is a judgment against the surety, the principal debtor is

also bound by the judgment from the time he has notice of the
action or proceeding and an opportunity at the suretys request to
join in the defense. The surety is only liable legally but the real
party liable is the debtor.
RES ADJUDICATA and RES JUDICATA are the same. In the

Philippines, that is influenced by Roman Law and Spanish Law (Pua
vs. Lapitan, 57 O.G. 4914) But the principle is known worldwide,
although maybe known by another name. In Anglo-American law, it
is known as the doctrine of Estoppel By Judgment (Fajardo vs.
Bayona, 98 Phil. 659). But it is the same. The concept is similar.
That is why in the 1994 case of
RES ADJUDICATA
And finally, the most important section in Rule 39 is Section 47
effect of judgment or final order. This is what we call the principle
of res adjudicata.
SALUD vs. CA 236 SCRA 384 [1994]

HELD: The rules of res judicata are of common law origin and they
initially evolved from court decisions. It is now considered a
principle of universal jurisprudence forming a part of the legal
system of all civilized nations.
Sec. 47. Effect of judgments or final orders.

The effect of a judgment or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or
final order, may be as follows:
Q: What is the FOUNDATION PRINCIPLE upon which the doctrine of

res judicata rests?
(a) In case of a judgment or final order

against a specific thing, or in respect to the
probate of a will, or the administration of the
estate of a deceased person, or in respect to
the personal, political, or legal condition or
status of a particular person or his
relationship to another, the judgment or final
order is conclusive upon the title to the thing,
the will or administration, or the condition,
status or relationship of the person; however,
the probate of a will or granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate;
A: It rests from the principle that parties ought not to be permitted

to litigate the same issue more than once; that when a right or fact
has been judicially tried and determined by a court of competent
jurisdiction, or where an opportunity for such trial had been given,
the judgment of the court shall be conclusive upon the parties and
those in privity with them. Otherwise, without this doctrine,
litigation would become interminable, rights of parties would be
involved in endless confusion, courts would be stripped of their
most efficient powers, and the most important function of
government, that of ascertaining and enforcing rights, would go
unfulfilled. (Zambales Academy vs. Villanueva, L-19884, May 8,
1969; People vs. Macadaeg, 91 Phil. 410; Oberiano vs.
Sobremesana, L-4622, May 30, 1952; Pealosa vs. Tuazon, 22 Phil.
303)
(b) In other cases, the judgment or final order

is, with respect to the matter directly
adjudged or as to any other matter that could
have been raised in relation thereto,
conclusive between the parties and their
successors in interest by title subsequent to
the commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same
capacity; and
I think we agree with that. Imagine, if two persons litigated for

years over the ownership of a parcel of land. Then after years of
litigation, all the way to the SC, defendant won. Final. After one
generation, both plaintiff and defendant are dead but their children
would continue. Here comes the children of the plaintiff raising the
same issue of ownership. So, there is no end if there is no res
judicata.
REQUISITES OF RES ADJUDICATA
What are the requisites of res adjudicata? How do we know, since
there are 2 cases here? Does it mean that simply because there is a
case between us, there will be no more case between us in the
future? NO.
(c) In any other litigation between the same

parties or their successors in interest, that
only is deemed to have been adjudged in a
former judgment or final order which
appears upon its face to have been so
adjudged, or which was actually and
necessarily included therein or necessary
thereto. (49a)
Q: So what are the requisites of res adjudicata?

A: There is res judicata if the following REQUISITES are present:
1)
We know what this is all about when the matter is already

decided or finish already, you cannot re-open that easily. The direct
provision of law which enunciates that principle is Section 47,
which is composed of 3 portions: paragraphs [a], [b] and [c].
2)
3)
4)
Now, paragraph [a] is the principle of res adjudicata as applied in

judgment in rem (binding on the whole world) or at least quasi in
rem. Paragraphs [b] and [c] are the application of the same
doctrine with respect to judgment in personam (binding only on
the parties).
The judgment or order invoked as res adjudicata must be

final;
The court rendering the same must have jurisdiction
over the subject matter and of the parties;
The judgment or order must be upon the merits; and
There must be, between the two cases, identity of
parties, identity of subject matter, and identity of cause
of action.
So the elements are similar with litis pendentia. Actually, they are
based on the same rule splitting of the cause of action. The only
difference is, in litis pendentia, the first action is still pending. In
389

res adjudicata, the first action has already been decided and the
decision has already become final.
order of dismissal was silent then the dismissal has the effect of an
adjudication on the merits.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL
HELD: Since We are talking of res adjudicata, let us correlate it with

the elements of res adjudicata under Rule 39.
When it says final, the previous judgment has been final and
executory (Hubahib vs. Insular Drug, 64 Phil. 119) Meaning, it can
no longer be changed. This is because there is such a thing as final
and appealable. A final and executory judgment is already beyond
the power of the court to alter while a final and appealable
judgment is still subject to modification by the appellate court.
(Macapinlac vs. CA, 86 Phil. 359)
One of the elements of res adjudicata is: When the case is

terminated, the court has jurisdiction over the case both as to the
person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the
person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of res
adjudicata. The second element of res judicata is missing.
So where there is a judgment now that you received, and before it

becomes executory, you filed another case, it is not res judicata. It
is litis pendentia because the first case is still pending.
Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE

MERITS
EXAMPLE: Jessa files a case against Charles. Charles lost and then
appealed. While his appeal is pending, Jessa filed the same case
against Charles. Charles filed a motion to dismiss the second case.
The ground for the motion to dismiss should be Litis Pendentia
because while there is already a decision, the same is not yet final
and executory. It is still on appeal. In such case, it is improper to
invoke the principle of res adjudicata because the first element is
missing.
What do we mean by this? A judgment on the merits for the

purpose of res judicata is one finally settling the issues raised in the
pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it
is after trial when there is presentation of evidence.
Therefore, when a complaint is dismissed for lack of jurisdiction or
improper venue, even if said dismissal becomes final, the plaintiff
can re-file the case because the dismissal upon improper venue or
lack of jurisdiction is not upon the merits. It never dealt with the
correctness or validity of the cause of action. There should be trial,
generally.
Q: Now, when did the first judgment become final? Is it before the
second case is filed? Or is it after the second case filed?
A: Either one. It could have been final before the filing of the
second action or after, provided when the defendant invoked it,
the first judgment is already final. (Galiancia vs. CA, 173 SCRA 42)
So, GENERALLY, a dismissal without a trial is not an adjudication

upon the merits EXCEPT in Rule 17, Section 3 where the case was
dismissed for failure of the plaintiff to appear during the
presentation of his evidence in chief, or to prosecute his action for
an unreasonable, period of time, or failed to comply with the rules
or order of the court. There is no trial there but according to Rule
17, Section 3, the dismissal shall have the effect of an adjudication
upon the merits. This is the exception even if there was no trial in
the first case.
Second Requisite: THE COURT RENDERING THE SAME MUST HAVE

JURISDICTION OVER THE SUBJECT MATTER AND OF THE PARTIES
Meaning, the first judgment is valid because if the court never
acquired jurisdiction over the subject matter and the parties and
rendered judgment, the judgment is void and cannot be invoked as
res judicata. (Banco Espaol-Filipino vs. Palanca, 37 Phil. 921)
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES,

IDENTITY OF PARTIES, IDENTITY OF SUBJECT MATTER, AND
IDENTITY OF CAUSE OF ACTION
Q: May a voidable judgment be invoked as res adjudicata?

A: YES because such kind of judgment is binding upon the parties
until annulled. (Reyes vs. Barretto-Datu, 94 Phil. 446)
I. IDENTITY OF PARTIES
Now, the classic example of the second element is the case which I
mentioned to you when we were in Rule 17 the case of
Q: When there is identity of parties for the purpose of res judicata?

A: There is identity of parties for the purpose of res judicata:
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA 166 SCRA 39

[1988]
FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his whereabouts
is now unknown. Several attempts made by the plaintiff to look for
him failed. After a while the court dismissed the complaint for
RBPs failure to prosecute. And the order of dismissal was silent.
So, following Section 3 of Rule 17, the dismissal is with prejudice
it shall have the effect of an adjudication upon the merits, unless
the order provides otherwise.
1)
When the parties in the second action are the same as the
parties in the first action; or
2)
When the parties in the second action are

successors-in-interest of the parties in the first action,
such as heirs or purchasers who acquired title after the
commencement of the first action.
EXAMPLE: The example I gave you, the quarrel between
parents, then the children did the same. That is the same
parties. The children are the successors-in-interest of the
original parties, although literally they are not the same
parties.
Then later on, the plaintiff (RPB) discovered the whereabouts of

the defendant. The RPB re-filed the compliant. Defendant moved
to dismiss because when the first complaint was dismissed and the
390

One good illustration of res adjudicata on identity of parties as

applied in a labor case was the case of
wrong committed by the defendant, even if the remedies be

different (Qiogue vs. Bautista, L-13159, Feb. 2, 1962). You cannot
change the remedy in order to escape from the principle of res
adjudicata.
DELFIN vs. INCIONG 192 SCRA 151 [1990]

NOTE: The doctrine of res adjudicata applies not only to the
decisions of regular courts but can be invoked even in
administrative cases. It also applies to decisions of administrative
bodies.
Sometimes, it is one of the hardest same cause of action

because sometimes there are 2 causes of action which are
interrelated, even between the same parties. Now, if there are 2
interrelated causes of action, there is no res adjudicata.
Interrelated only, because the law says similar causes of action.
That is hard to determine.
FACTS: In the case of DELFIN, a union filed a case of unfair labor

practice (ULP) against the employer. Then later on, the case was
dismissed by the NLRC. When the case was dismissed, the
employees filed another case based on the same ULP. The
employer invoked res adjudicata and the complainants said, No, it
is not the same parties. In the first case, it was the union. Now it is
us (employees).
That is why the SC had to give some tests to determine whether

the causes of action are the same or not. Among these tests given
by the Court:
TESTS TO DETERMINE WHETHER OR NOT THE CAUSES OF
ACTION ARE THE SAME:
HELD: NO! When the union filed the first case, it was filing in behalf
of the employees. This is what you call representative party. In
effect, it is the same party.
1)
SAME EVIDENCE Test as laid down in the case of

AQUILA ESTATE vs. BACOLOD-MURCIA MILLING CO.
144 SCRA 482
While it is true that the complainants in the first charge was the
union, in reality it had no material interest in the outcome of the
case. The real party who stands to be benefited or defeated by a
case brought in the name of the union are the union members
themselves. Since the judgment therein had become final and
executory, the subsequent filing of another ULP charge against the
employer for the same violations committed during its existence, is
barred by res judicata.
HELD: Res adjudicata can not be applied even though in

the 2 cases there is identity of parties, subject matter,
and relief prayed for, the evidence adduced to sustain
the cause of action in the first case is not sufficient to
sustain the second case. So, the evidence was sufficient
to prove the first case while the same evidence is not
sufficient to prove the second case. Therefore, it must be
different cause of action for how come the same evidence will not suffice anymore. So, it must be a different
one.
The bringing of the same action in the name of the individual

members of the union will not take out the case from the ambit of
the principle of res judicata. So, it is still the same parties.
II. IDENTITY OF SUBJECT MATTER
2)
INCONSISTENCY Test given in the case of
Q: When is there identity of subject matter?
VALENCIA vs. RTC 184 SCRA 80
A: There is identity of subject matter if in the second case, the

same thing is involved or included in the first case. (Agregado vs.
Muoz, 26 Phil. 546)
HELD: One test of the identity of cause of action is

whether or not the judgment sought in the subsequent
case will be inconsistent with the prior judgment.
Meaning, you are asking for a decision which is in conflict
with the original decision.
EXAMPLE: A judgment in an action for the recovery of a large tract

of land shall be a bar for a subsequent action for the recovery of a
smaller parcel included in the large tract. (Rubiso vs. Rivera, 41 Phil.
39)
Q: Suppose there is an inconsistency, is this a sign of res adjudicata

or no res judicata?
EXAMPLE: A judgment in an action for accounting of a certain

funds would be a bar for a subsequent action for the partition of
the same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411)
A: Well, I think if there is an inconsistency, that is a sign of res

adjudicata because you are trying to change what has already been
rendered. To my mind, that is how it should be interpreted because
if the judgment I am seeking is inconsistent with what has been
decided, then I think that is violating the rule of res adjudicata I
am re-opening something which was already decided.
EXAMPLE: A case for recovery of property was dismissed. The

losing party file a second case for recovery of the value of the
property. In this case, there is res adjudicata. So, you can not
deviate no? Kahit konting retoke lang, it is the same.
3)
III. IDENTITY OF CAUSES OF ACTION
And the test in the 1995 case of

GUEVARRA vs. BENITO 247 SCRA 570
Q: When is there identity of causes of action for the purpose of res

judicata?
HELD: The causes of action can not be the same if the

cause of action in one case only arose after the judgment
in the other. The principle of res judicata extends only to
the facts and conditions as they existed at the time the
judgment was rendered.
A: There is identity of causes of action for the purpose of res

judicata when the two actions are based on the same delict or
391

Those are the important principles to remember (read the cases in

short).
longer recover her child. But if we disregard res judicata, the

mother will be given a chance to get back her child, which is higher
in value than res judicata.
RARE INSTANCES WHERE SC REFUSES TO ALLOW RES JUDICATA

DESPITE ITS EXISTENCE
This principle observed in SUAREZ was actually repeated in the

1994 case of
Another point, res adjudicata is a rule of law, rule of convenience,

of practicality and when the evidence are present, the courts shall
not allow second litigation. We know that but I have to admit that
there are some rare cases where despite the elements of res
adjudicata, the courts refused to allow it.
SALUD vs. CA 233 SCRA 284 [1994]

HELD: There should not be a mechanical and uncaring reliance on
res judicata where more important societal values deserve
protection. The doctrine of res adjudicata is a rule of justice which
cannot be rigidly applied when it results to injustice.
This is what we call EQUITY CASES. But this is very rare. When there
is a higher principle to be observed rather than the rule of res
adjudicata there are higher values of society which would be
subverted if we will stick to res adjudicata. A good example is the
case of
This is another pronouncement which leans on the equitable side

of the situation rather than on the observance of the technical
rules of res adjudicata. You can disagree with the decision but the
same can not be wrong. This is what you call infallible. Infallible
means no room for error. That is why Justice Jackson said
commenting on the US SC: We are not final because we are
infallible. But we are infallible because we are final.
SUAREZ vs. CA 193 SCRA 183 [1991]

FACTS: This involves a custody case. A certain Rosemarie Manese
filed a petition for habeas corpus for the recovery of her minor
child from her former live-in partner or common-law husband,
Renato Suarez. Later, Manese filed a motion to dismiss the habeas
corpus case for she intended to pursue another remedy custody
of minor under Rule 99 of the Rules of Court in Special Proceedings.
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF

JUDGMENT
If you have read the questionnaire in Remedial Law last September
(1997), one of the questions asked by the examiner is: Distinguish
the concept of BAR BY A FORMER JUDGMENT and the concept of
CONCLUSIVENESS OF JUDGMENT.
Actually, as observed by the SC, her move was wrong because you
can obtain custody of your child through habeas corpus. She
though she had the wrong remedy, so she changed it. Actually she
was correct. The trouble is, she withdrew it. In the trial for the
dismissal of the habeas corpus, it was with prejudice so actually, it
is on the merits no?
The two concepts are found in Section 47. The concept of bar by a
former judgment is in paragraph [b] and conclusiveness of
judgment is in paragraph [c]. These are two parts of the res
adjudicata rule.
Thereafter, she filed the custody case against Suarez. The latter
moved to dismiss on the ground of res adjudicata. All the evidence
are admitted there. There was a decision on the merits.
The two concepts were discussed by the SC in the case of SALUD:

The concept of Bar By A Former Judgment is known in traditional
terminology as merger or bar; and in modern terminology, it is
called CLAIM PRECLUSION; while Conclusiveness Of Judgment is
traditionally known as collateral estoppel and in modern
terminology it is called ISSUE PRECLUSION.
HELD: The principle of res judicata should be disregarded if its

application would involve the sacrifice of justice to technicality. In
other words, this is what we call EQUITY.
The application of the res adjudicata should be taken on a case to
case basis; you cannot say you apply res adjudicata through and
through. It must be taken under the particular facts obtained.
Meaning, there are certain facts in that case which will warrant a
deviation from the usual rule, to do otherwise would amount to
denial of justice and/or bar to a vindication of a legitimate
grievance.
Q: Distinguish BAR BY A
CONCLUSIVENESS OF JUDGMENT.
FORMER
JUDGMENT
and

1)
It is worth stating here that the controversy in the instant case is

not just an ordinary suit between parties over a trivial matter but a
litigation initiated by the natural mother over the welfare and
custody of her child, in which the State has a paramount interest.
This is not a simple collection case.
As to Effect: If you analyze paragraph [b], there are two

judgments in BAR BY A FORMER JUDGMENT, the first
judgment constitute an absolute bar to all matters directly
adjudged as well as matters that might have been
adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first judgment is
conclusive only on matters actually litigated and adjudged
in the first action under paragraph [c].
The fundamental policy of the State as embodied in the

Constitution in promoting and protecting the welfare of children
shall not be disregarded by the courts by mere technicality in
resolving disputes which involve the family and the youth.
2)
So there is a collision here between the family view found in the

Constitution and the technical principle of res adjudicata. If we
sustain the principle of res adjudicata then the mother can no
As to the Requisites: In BAR BY A FORMER JUDGMENT,

there must be identity of parties, subject matter, and
cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is
identity of parties or subject matter, it is not necessary
that there is identity of causes of action.
392

Of course, for purposes of the bar exams, that kind of answer will
suffice but mas maganda if there is illustration: Kung bar by prior
judgment the first judgment is res adjudicata to the second or
matters that have been adjudged and matters that could have been
adjudged in relation thereto.
Then later B1 died. After that, B2 said to X, Isauli mo na sa akin

ang mga properties ko. X said, What are you talking about? I
already bought it from you, akin na ito! B2 filed a case against X.
The defense of X is res adjudicata.
HELD: There is NO res adjudicata. In the first place, one of the
elements of res adjudicata is identity of parties. Of course, both of
them are also parties of the first case but they were not adverse to
each other. They were co-defendants in the first case.
EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim.

I filed a case against you for recovery of land. Meron ka pa lang
claim sa akin for reimbursement for necessary expenses. It must be
set-up in the main action otherwise it is barred forever. But you did
not set it up and then afterwards, you file a case against me for
reimbursement for necessary expenses, I will move to dismiss. Your
claim is already barred because you should have raised it as a
compulsory counterclaim in the first action. The barring of the
counterclaim is considered as the application of res adjudicata by
applying the concept of bar by a former judgment.
Res adjudicata is only applicable between adverse parties in the

former suit and not between parties. Co-parties for the judgment
therein ordinarily settle claims as to their relative rights and
liabilities as co-plaintiffs or co-defendants per se.
But the second reason is, the cause of action is completely different
and therefore the judgment in the first case is conclusive only
insofar as the right of B1 is concerned. It cannot be conclusive as
to the rights of B2 and X because it is a separate cause of action.
EXAMPLE of Conclusiveness of Judgment: The debtor borrows

from the creditor P3 million payable in 3 installments without any
acceleration clause. When the first installment fell due the creditor
sue the debtor and the debtor raised the defense of forgery, That
the promissory note is forged and as an alternative defense
assuming that the promissory note is valid, the first installment was
already extinguished by payment. After trial, the court decided
against the defendant. Tapos na. Now, the second installment fell
due. It is another cause of action. Now, here comes the plaintiff
filing the case to collect the second installment.
Another was the 1993 case of

VDA FISH BROKER vs. NLRC 228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of
service incentive leave, COLA, 13th month pay, holiday pay, is
dismissed based on the finding that no employer-employee
relationship existed between the complainant and the respondent.
The ruling became final.
Q: Can the debtor raise again, in the second case, the defense of
FORGERY of the promissory note?
Subsequently, the same complainants filed another case against

the same respondent for reinstatement due to illegal dismissal.
(How can you file for reinstatement na wala man kayong ER-EE
relationship in the first case???)
A: NO. Tapos na yan. We have already decided that the promissory

note was genuine and that there was no forgery. This is the same
promissory note that we are talking about. So, in other words, the
issue of forgery is already adjudged in the first case and therefore
res adjudicata in the second installment.
ISSUE: Is the finding of no ER-EE relationship in the first case res

adjudicata to the second case for illegal termination?
Q: Can the debtor raise the defense of PAYMENT, that the second
installment is already paid or is it also barred?
HELD: YES. The issue of employer-employee relationship is crucial

in the determination of the rights of the parties in both cases. Res
adjudicata applies even when the cause of action is not similar
under the concept of conclusiveness of judgment. The ruling in the
first case that there is no Employer-Employee relationship between
the parties is conclusive in subsequent cases although the cause of
action is not the same.
A: YES, because in the first case what was resolved was whether
the first installment is paid. The judgment is already conclusive on
matters directly adjudged but not to matters which have not been
adjudged. The issue on whether the second or third installment
have already been paid was never adjudged in the first case. That is
the application. Take note that there is no identity of cause of
action.
If were we to ignore the principle of res judicata, an absurd

situation would arise where the same administrative agency would
have diametrically opposed conclusions based on apparently
similar circumstances. This is what will happen - for the second
case, there is ER-EE relationship. It is the same agency which said
there is none in the first case. Conflict!
Another example of Conclusiveness of Judgment was the ruling in

the case
CARANDANG vs. VENTURANZA 133 SCRA 344 [1984]
FACTS: This involves a conflict between two brothers, B1 and B2.
There is already bad blood between them because according to B1,
B2 appropriated all the properties of their parents. So there was
this threat from B1 to sue B2 to recover his share.
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH

RES JUDICATA:
A.) LAW OF THE CASE
B.) STARE DECISIS
So B2 consulted his friend X. X suggested that B2 enters into a

simulated sale with X. B2 sold his property to X. As expected, B1
filed a case against both of them to annul or rescind the action.
Unfortunately, B1 has never proved that the sale was simulated.
The case was dismissed.
Another question that can be asked here is, how to explain and
distinguish 3 concepts which appear to be similar. These 3 concepts
are all anchored on the same thing: there is a final judgement. The
concept of res adjudicata, law of the case and stare decisis. That
was also asked in the bar.
393

We already know RES ADJUDICATA finality of judgment, or the

issues decided in a case, once the decision has become final and
executory and cannot be litigated again by the same parties in a
subsequent action involving the same subject matter. (Pealosa vs.
Tuazon, supra.)
precedents for future cases. The purpose of this is to attain stability

and judicial order. That is why we are citing precedents.
ROSALES vs. CFI 154 SCRA 153 [1987]
HELD: Precedents are helpful in deciding cases when they are
substantially identical with previous litigations. Argumentum a
simili valet in lege. Earlier decisions are guideposts that can lead us
in the right direction as we tread the 'highways and byways of the
law in the search for truth and justice. These pronouncements
represent the wisdom of the past. They are the voice of vanished
judges talking to the future. Except where there is a need to
reverse them because of an emergent viewpoint or an altered
situation, they urge us strongly that, indeed, the trodden path is
best.
Q: What about the LAW OF THE CASE?

A: LAW OF THE CASE means that legal conclusions announced on a
first appeal, whether on the general law of the law as applied to the
concrete facts, not only prescribe the duty and limit the power of
the trial court to strict obedience and conformity thereto, but they
become and remain the law of the case in all after steps, whether in
the lower court or in the appellate court on a subsequent appeal.
(Zarate vs. Dir. of Lands, 39 Phil. 747)
EXAMPLE of law of the case: There is a case between us and then
an issue is raised before the CA and there is a ruling, right or wrong.
That ruling will subsequently bind the parties in the same litigation.
Once the case comes back, the future now of the case will be
governed by that ruling. Right or wrong, that principle will now be
the controlling principle affecting the parties. The principle will
continue until the case is terminated.
Trodden Path example is when you go on hiking like in Mt. Apo.

If there is already a path or trail, you will not have a hard time
looking for your way up to the peak of Mt. Apo. There is already a
way which will guide you to reach your destination.
But the doctrine of stare decisis admittedly does not mean that
courts should be slave forever to precedents. A doctrine long
standing has also been reversed. The SC explained also why once in
a while it abandons the doctrine of stare decisis:
TABACO vs. CA 239 SCRA 485 [1994]

ISSUE: Can a case be re-opened if the law of the case has been
changed?
PEOPLE vs. MUOZ 170 SCRA 107 [1989]

HELD: If we have seen fit to take a second look at the doctrine on
which we were all agreed before, it is not because of a change in
the composition of this body. It is virtually the same Court that is
changing its mind after reflecting on the question again in the light
of new perspectives. The decisions of this Court are not petrified
rules grown rigid once pronounced but vital, growing things subject
to change as all life is. While we are told that the trodden path is
best, this should not prevent us from opening a fresh trial or
exploring the other side or testing a new idea in a spirit of
continuing inquiry.
HELD: NO, because when the case was decided, it was the
governing law at the time, even if it turns out to be wrong.
Under the law of the case concept, whatever is once irrevocably
established as the controlling legal principle or decision continues
to be the law of the case between the same parties in the same
case, whether correct or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before
the court. Such stability and conclusiveness given to final
judgments of courts of competent jurisdiction are said to be
grounded on reasons of public policy, judicial orderliness and
economy as well as protection of the time and interests of the
litigants.
Q: Distinguish Res Adjudicata and Stare Decisis.

A: RES ADJUDICATA operates between two actions involving the
same parties and the same cause(of action); while STARE DECISIS
refers to cases with different parties.
A good EXAMPLE: File ako ng kaso collection of an unpaid loan

based on the provision of the Civil Code but the debtor said, There
is no cause of action because the provision of the civil code is
unconstitutional. After trial the court said, Yes, article so-so of the
Civil Code is unconstitutional. The debtor is not obliged to pay.
Tapos na. Final na ang decision because there was no appeal. What
will happen? We are bound. As far as this case is concerned, the
Civil Code is unconstitutional. That is the law of the case.
STARE DECISIS refers only to decisions of the SC (decisions of the

CA are not a basis of stare decisis); while the doctrine of RES
ADJUDICATA refers to all courts: SC, CA, RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.
A: LAW OF THE CASE refers only to one case which may or may not
be invoked in subsequent cases, while STARE DECISIS may refer to
various cases which are usually invoked in subsequent cases.
KILOSBAYAN vs. MORATO 246 SCRA 540 [1995]

HELD: The doctrine of the law of the case applies whenever the
case before the court came for the second time after a ruling of the
appellate court (???).
Sec. 48. Effect of foreign judgments or final

orders. - The effect of a judgment or final
order of a tribunal or a foreign country,
having jurisdiction to render the judgment or
final order is as follows:
Q: What you mean by STARE DECISIS?

A: Stare Decisis means that the decision of a court should stand as
precedents for future guidance (Ballentines Law Dict., 2nd Ed.,
1228) Example is the decisions of the SC which stands as
(a)
In case of a judgment or final order
upon a specific thing, the judgment or final
394

order is conclusive upon the title to the thing;

and
Q: How do you enforce a foreign judgment?

A: The usual procedure, you file a case against the same defendant
here and the cause of action is enforcement of a foreign judgment.
And then the Philippine court will render a judgment enforcing it
and then you can execute.
(b)
In case of a judgment or final order
against a person, the judgment or final order
is presumptive evidence of a right as
between the parties and their successors in
interest by a subsequent title.
The SC commented on the enforcement of a foreign judgment in

the Philippines in the case of
In either case, the judgment or final order

may be repelled by evidence of a want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact. (50a)
PHILSEC vs. CA June 19, 1997

HELD: While this court has given the effect of res judicata to
foreign judgments in several cases, it was after the parties opposed
to the judgment had been given ample opportunity to repel them
on grounds allowed under the law. It is not necessary for this
purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential is that
there is opportunity to challenge the foreign judgment, in order for
the court to properly determine its efficacy. This is because in this
jurisdiction, with respect to actions in personam, as distinguished
from actions in rem, a foreign judgment merely constitutes prima
facie evidence of the justness of the claim of a party and, as such, is
subject to proof to the contrary.
Sec. 48 is actually a law on conflict of laws - effect of foreign

judgment. If a judgment is rendered in U.S. and is being invoked in
the Philippines, should we honor it? Yes. So, is it conclusive? Yes.
The law says, in case of judgment upon a specific thing, the
judgment or final order is conclusive effectively.
PROBLEM: Mortverine and Mistiqla were both in the U.S. and they
quarreled about the ownership of a ring. They went to an American
court. After trial, the court ruled that Mortverine is the legitimate
owner of the ring. The judgment became final. Subsequently both
of them came to the Philippines and Mistiqla filed a case against
Mortverine to recover the same ring. Sabi ni Mortverine, Res
adjudicata na ito eh, tapos na yan. Here is the decision in America.
Therefore it is settled.
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign judgment upon a
SPECIFIC THING, the judgment is conclusive upon the parties. Hindi
puwedeng buksan. Thats already litigated abroad, merong nang
decision. We will respect it.
Suppose the judgment is against a person. The law says it is
presumptive evidence of a right as between the parties.
EXAMPLE: A and B were both Americans. They were married in the
U.S. and obtained a divorce in the states. They came to the
Philippines. The issue is whether the marriage was validly
terminated. According to one party, Yes, meron man tayong
divorce ba. Is the decree of divorce abroad involving these
American couple allowed in the Philippines considering we have no
divorce here? That is their law. It is presumptive evidence of a right
of the parties.
EXAMPLE: H and W are Philippine citizens. They went abroad and
somehow able to get a divorce in an American court which became
final. They came back here. Will the Philippine court honor the
divorce? Here, the judgment may be repelled by want of
jurisdiction of the American court, etc. The judgment is presumed
to be valid unless you can attack by showing lack of jurisdiction.
What is the principle in private international law? A judgment of
divorce rendered by an American court between 2 Filipinos is null
and void. Why? The American court never acquired jurisdiction
over the status of the parties (because they are not U.S. citizens).
But judgment in personam is honored here except when there is
want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
395

APPEALS
Rule 40
5)
6)
APPEAL FROM MUNICIPAL TRIAL COURTS

TO THE REGIONAL TRIAL COURTS
APPEAL The law on appeal starts from Rule 40 to Rule 56. Usually
the appeal is from the trial court to the next higher court. Under
the judiciary law, appeals from the MTC should be to the RTC which
is governed by Rule 40. And when the case is tried by the RTC and
you want to appeal, normally, the appeal should be to the CA
under Rule 41.
7)
Remedy in case the judgment or final order is not appealable

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 R 41). However, 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 R 37).
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.(StoltNielsen vs. NLRC GR No. 147623, December 13, 2005)
2)
The right to appeal is not a constitutional right or a natural

right (Canton vs. City of Cebu GR No. 152898, February 12,
2007).
fraud, mistake or duress, or any other ground vitiating

consent;
An order of execution;
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
An order dismissing an action without prejudice.
Issues that may be raised on appeal
3)
It is already well-settled in this jurisdiction that a party may not

change his theory of the case on appeal. Such rule has been
expressly adopted in Rule 44, Section 15 of the 1997 Rules of Civil
Procedure, which provides
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 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 vs. CA GR No. 140150 August 22, 2005).
4)
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 (Manacap vs. Equitable-PCI
Bank, 468 SCRA 256).
5)
An appeal may be taken only from judgments or final

orders that completely disposes of the case (Sec. 1 R 41).
An interlocutory order is not appealable until after the
finality of the judgment on the merits.
Sec. 15. Questions that may be raised on appealWhether 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.
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 tenets of fair play (Com. of Internal Revenue vs.
Migrant Pagbilao Corp. GR 159593, October 12, 2006).
Judgments or orders that are not appealable

Issues that the appellate court decides on appeal
As found in the enumeration in Sec. 1 Rule 41, they are as follows:
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.
(An order denying a motion for new trial or a motion for

reconsideration; This is no longer part of the enumeration as of
Dec. 27, 2007 per A.M. No. 07-7-12-SC)
1)
2)
3)
4)
An order denying a petition for relief or any similar motion

seeking relief from judgment;
An interlocutory order;
An order disallowing or dismissing an appeal (Heirs of
Gaudiano vs. Benemerito GR No. 174247, February 21,
2007);
An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
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 vs. Serrano 451 SCRA 484).
For an appellate court to consider a legal question, it should have
been raised in the court below (Philippine National Oil Company vs.
CA 457 SCRA 32). It would be unfair to the adverse party who
would have no opportunity to present evidence in contra to the
396

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 vs. Poblete GR 1444435
February 6, 2007; Pineda vs. Heirs of Eliseo Guevara, GR 143188,
February 14, 2007).
matter and determine whether or not there is sufficient

justification for the award of damages (Sps. Romulo and
Sps. Layug, GR 151217, September 8, 2006).
It has also been held that the CA for instance, is imbued with
sufficient authority and discretion to review matters, not otherwise
assigned as errors on appeal, if it finds that the consideration is
necessary in arriving at a complete and just resolution of the case
or to serve the interests of justice or to avoid dispensing piecemeal
justice (Asian Terminals Inc. vs. NLRC 541 SCRA 105 [2007]).
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 would 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, and offend the basic rules of fair play,
justice and due process (Canada vs. All Commodities Marketing
Corp. GR 146141, October 17, 2008).
Appeals in criminal cases

In a criminal case, an appellate court appears to enjoy wide latitude
in deciding an appealed case. Thus:
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 SC 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 vs. CA GR 141669
February 28, 2005; Ferrer vs. People GR 143487 February 22, 2006;
Abedes vs. CA 536 SCRA 268 [2007]).
An appeal in a criminal case opens the entire case for review. The
Court can correct errors unassigned in the appeal (People vs. de la
Torre GR 176637 October 6, 2008).
When errors not raised on appeal may be considered

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 R
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:
Payment of docket fee

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
vs. Go GR 167988 February 6, 2007).
(a)
It is an error that affects the jurisdiction over the subject

matter;
(b) It is an error that affects the validity of the judgment
appealed from;
(c) It is an error which affects 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 vs. Heirs of Fortunato Doronio, 5341
SCRA 479 [2008]).
(e) It is a plain clerical error.
Payment of docket fees and other legal fees within the prescribed
period is both mandatory and jurisdictional, noncompliance
without 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 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. Nonpayment of the appellate court
docket and other lawful fees within the reglementary period is a
ground for the dismissal of an appeal (Cu-Unjieng vs. CA 479 SCRA
594 January 24, 2006).
The fact that the plaintiffs brief did not raise the lack of
jurisdiction at the trial court should not prevent the
Court of Appeals from taking up the issue of lack of
jurisdiction (Calimlim vs. Ramirez 118 SCRA 399; Dy vs.
NLRC 145 SCRA 211)
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.
Jurisprudence likewise provides some exceptions to the rule

a)
b)
Declared the SC: The Supreme Court is clothed with

ample authority to review matters, even if they are not
assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a just decision of
the case. (Dumo vs. Espinas GR 141962, January 25,
2006; Comilang vs. Burcena, GR No. 146853, February
13, 2006; Boston Bank vs. Manalo GR 158149 February 9,
2006).
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 docket fee within the
reglementary period allows only discretionary dismissal, not
automatic dismissal of the appeal;
In one case, although petitioners did not raise as issue

the appellate courts reversal of the award of damages in
their favor, the Court has the discretion to pass upon this
Second, such power should be used in the exercise of the Courts

sound discretion in accordance with the tenets of justice and fair
397

play and with great deal of circumspection considering all

attendant circumstances (Republic vs. Sps Luriz GR 158992
January 26, 2007).
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.
Record on appeal; notice of appeal

An appeal is normally made by filing a notice of appeal with the
court which rendered the judgment or final order appealed from
(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.
Perfection of the appeal
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 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.
A partys appeal by notice of appeal is deemed perfected as to him

upon the filing of the notice of appeal in due time. A partys 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. 4R 40 in relation to Sec. 9 R 41)
The notice of appeal does not require the approval of the court.
The function of the notice of appeal is merely to notify the trial
court that the appellant was availing of the right to appeal, and not
to seek the courts permission that he be allowed to pose an appeal
(Crisologo vs. Daray, A.M. RTJ-07-2036, August 30, 2006)
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 R 67).
This order of expropriation may be appealed by any party by filing a
record on appeal (Tan vs. Republic 523 SCRA 203).
We will stick to the basic rule on appeal found in the judiciary law,
Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from
final orders, resolutions, awards, judgments
or decisions of any court in all cases shall be
fifteen (15) days counted from the notice of
the final order, resolution, award, judgment,
or decision appealed from: Provided,
however, That in habeas corpus cases, the
period for appeal shall be forty-eight (48)
hours from the notice of the judgment
appealed from.
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 vs. Republic, supra).
Multiple appeals are allowed in special proceedings, in actions for
recovery of [property with accounting, in the special actions for
eminent domain and foreclosure of mortgage. The rationale behind
allowing more than pone appeal in the same 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 vs. CA GR 111324 July 5, 1996).
No record on appeal shall be required to take

an appeal. In lieu thereof, the entire original
record shall be transmitted with all the pages
prominently
numbered
consecutively,
together with an index of the contents
thereof.
Note:
This section shall not apply in appeals in

special proceedings and in other cases
wherein multiple appeals are allowed under
applicable provisions of the Rules of Court.
If however, the trial court has fully and finally resolved all the
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
vs. CA GR 161219, October 6, 2008. In its decision, the trial court
already determined two main issues, namely, Respondent
NAPOCORs 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
There are three (3) instances under Section 39:

Type of Case
398
Period to
appeal
A. Civil Actions in general
15 days
B. Special Proceedings and

Civil
Actions
where
multiple
appeal
is
allowed
C. Habeas Corpus
30 days
48
hours
Requisites for
appeal
Notice
of
appeal
1. Notice of
Appeal
2. Record on
Appeal
Notice
of
Appeal

So this is the general outline of the law on appeals under Section

39, BP 129.
Sec. 2. When to appeal. An appeal may be

taken within fifteen (15) days after notice to
the appellant of the judgment or final order
appealed from. Where a record on appeal is
required, the appellant shall file a notice of
appeal and a record on appeal within thirty
(30) days after notice of the judgment or final
order.
[EDITORS NOTE:] The 48-hour period to appeal in habeas corpus

cases under Section 39 of BP 129 is now incorporated in Rule 41,
Section 3 as amended, which took effect last July 15, 2000 (A.M.
No. 01-1-03-SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate
jurisdiction of the RTC is found in Section 22, BP 129. That is why
Rule 40 is revolving around that provision:
The period of appeal shall be interrupted by a

timely
motion
for
new
trial
or
reconsideration. No motion for extension of
time to file a motion for new trial or
reconsideration shall be allowed. (n)
BP 129, Sec. 22.

Appellate jurisdiction. Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall be
decided on the basis of the entire record of
the proceedings had in the court of origin and
such memoranda and/or briefs as may be
submitted by the parties or required by the
RTCs. The decision of the RTCs in such cases
shall be appealable by petition for review to
the CA which may give it due course only
when the petition show prima facie that the
lower court has committed an error of fact or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed.
In relation to certain jurisprudence, the 15-day period cannot be

extended. (Lacsamana vs. IAC, 143 SCRA 643) It cannot be
extended but it can be interrupted by a timely motion for new trial
or reconsideration. And no motion for extension of time to file a
motion for new trial or reconsideration shall be allowed. (Section 2)
Q: How about the 30-day period? Is the 30-day period extendible?
A. YES. It is extendible for record on appeal, on the condition that
the Motion to Extend must be filed within the original 30 days and
provided further that the movant has no right to expect that his
motion will be granted.
So the 15-day period can never be extended but the 30-day period
is extendible based on jurisprudence. This is because a notice of
appeal is normally a one-paragraph document. You can do that in
just 5 minutes. But a record on appeal is makapal. That is why it is
30 days. Sometimes kulangin pa yung 30-day period. So you can
extend it provided you file the motion for extension during the
original 30-day period.
Let us now go to Section 1 of Rule 40:

Section 1. Where to appeal. An appeal from a
judgment or final order of a Municipal Trial
Court may be taken to the Regional Trial
Court exercising jurisdiction over the area to
which the former pertains. The title of the
case shall remain as it was in the court of
origin, but the party appealing the case shall
be further referred to as the appellant and
the adverse party as the appellee. (n)
Sec. 3. How to appeal. The appeal is taken by

filing a notice of appeal with the court that
rendered the judgment or final order
appealed from. The notice of appeal shall
indicate the parties to the appeal, the
judgment or final order or part thereof
appealed from, and state the material dates
showing the timeliness of the appeal.
So from the MTC, the appeal is to the RTC exercising jurisdiction

over the area to which the former pertains. That is why under the
judiciary law, every RTC has a designated territorial area. So, if you
want to appeal from the decision of the MTC of Davao City, you
appeal to the RTC of Davao. You do not make your appeal to the
RTC of Tagum because it does not exercise jurisdiction over Davao
City.
A record on appeal shall be required only in

special proceedings and in other cases of
multiple or separate appeals.
The form and contents of the record on
appeal shall be as provided in section 6, Rule
41.
And take note under Section 1, it is now required that when you
appeal from the MTC to the RTC, you should indicate in the caption
of the case who is the APPELLANT and the APPELLEE. This is also
the procedure when you are appealing to the SC.
Copies of the notice of appeal, and the record

on appeal where required, shall be served on
the adverse party. (n)
The appellant is the party appealing the case while the appellee is
the adverse party. So for example, the original title of the case in
the MTC is: JOBOY, plaintiff vs. BROSIA, defendant. If Joboy will
appeal the case, the title of the case now in the RTC will be:
JOBOY, plaintiff-appellant vs. BROSIA, defendant-appellee. Or, if
Brosia will be the one appealing the case, the title now will be:
JOBOY, plaintiff-appellee vs. BROSIA, defendant-appellant.
Q: How do you appeal?

A: Under Section 3, you file a Notice of Appeal to the court that
rendered judgment, so MTC. And it shall indicate the parties to the
appeal, the judgment or final order or part thereof appealed from,
and state the material dates showing the timeliness of the appeal.
For example:
The period to appeal is in Section 2:
399

Notice of Appeal
made. It does not automatically result in the dismissal of the appeal

unless it affects the jurisdiction. The dismissal being discretionary
on the part of the appellate court, such dismissal should be
exercised wisely.
Defendant hereby serves notice that

he is appealing to the RTC from the
judgment rendered by the MTC
dated March 5, 1998 copy of which
was received by him on March 15,
1998.
This ruling is still applicable. Although Section 5 prescribes that

within the period to take appeal you must pay the docket fee. If
you do not pay it, it may not cause ipso facto the dismissal of your
appeal. But the clerk of court may refuse to transmit the record to
the RTC until you pay. So docket fee is not a requirement to perfect
an appeal although it is an obligation also.
So it is very simple to make. And you must indicate exactly not only
the date of the decision but also the date when you received it
because the period to appeal does not run from the date of the
decision but from the time you received it. That is why the rule
says, you must state the material dates showing the timeliness of
the appeal. (Record on appeal is discussed in Rule 41, Section 6.)
Sec. 6. Duty of the clerk of court. Within

fifteen (15) days from the perfection of the
appeal, the clerk of court or the branch clerk
of court of the lower court shall transmit the
original record or the record on appeal,
together with the transcripts and exhibits,
which he shall certify as complete, to the
proper Regional Trial Court. A copy of his
letter of transmittal of the records to the
appellate court shall be furnished the parties.
(n)
Of course, the adverse party should be furnished with a copy of the

notice of appeal.
Sec. 4. Perfection of appeal; effect thereof.
The perfection of the appeal and the effect
thereof shall be governed by the provisions
of section 9, Rule 41.
Q: When is the appeal deemed perfected?
What is the requirement to perfect an appeal? It is notice of appeal

only or record on appeal also for special proceedings.
A: See discussion under Section 9, Rule 41. From the moment the
appeal is deemed perfected, the MTC loses jurisdiction over the
case. And by fiction of law, jurisdiction is automatically transferred
to the RTC.
Section 5 of this rule now states that when the party takes an
appeal, it is the obligation of the appellant to pay the appellate
docket fee which is imposed by Rule 141 so that the clerk of the
MTC will elevate the appeal to the MTC.
Sec. 5. Appellate court docket and other lawful

fees. Within the period for taking an appeal,
the appellant shall pay to the clerk of the
court which rendered the judgment or final
order appealed from the full amount of the
appellate court docket and other lawful fees.
Proof of payment thereof shall be
transmitted to the appellate court together
with the original record or the record on
appeal, as the case may be. (n)
Within the period to appeal (normally within 15 days),
appellant must pay the docket fee. So that when the records
transmitted, bayad na. Even before this rule came out,
payment of appellate docket fee is really required. The rule is
same.
Sec. 7. Procedure in the Regional Trial Court.

(a) upon receipt of the complete record or
the record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of
such fact.
(b) Within fifteen (15) days from such notice,
it shall be the duty of the appellant to submit
a memorandum which shall briefly discuss
the errors imputed to the lower court, a copy
of which shall be furnished by him to the
adverse party. Within fifteen (15) days from
receipt of the appellants memorandum, the
appellee may file his memorandum. Failure
of the appellant to file a memorandum shall
be a ground for dismissal of the appeal.
the
are
the
the
Q: Suppose I will file my Notice of Appeal within 15 days but I will

not pay the docket fee, should my appeal be dismissed? Is it an
additional requirement for appeal?
(c) Upon the filing of the memorandum of the

appellee, or the expiration of the period to
do so, the case shall be considered submitted
for decision. The Regional Trial Court shall
decide the case on the basis of the entire
record of the proceedings had in the court of
origin and such memoranda as are filed. (n)
A: In the case of
SANTOS vs. CA 253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee automatically cause the
dismissal of the appeal in the MTC to the RTC?
What happens if the case reaches the RTC? Section 7 answers it.
The clerk of court shall notify the parties. What is important here is
paragraph [b], a radical provision:
HELD: The payment of appellate fee is found in Section 8 of Rule

141. But the SC observed that the only requirement is Notice of
Appeal. There is no mention of appellate fee. The payment of
appellate fee is not a requisite to the perfection of an appeal
although Rule 141 does not specify when said payment shall be
(b) Within fifteen (15) days from such notice,

it shall be the duty of the appellant to submit
a memorandum which shall briefly discuss
400

the errors imputed to the lower court, a copy

of which shall be furnished by him to the
adverse party. Within fifteen (15) days from
receipt of the appellants memorandum, the
appellee may file his memorandum. Failure
of the appellant to file a memorandum shall
be a ground for dismissal of the appeal.
trial. That is disposing of the case without trial. Now, RTC said,
MTC has jurisdiction.
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is
for P500,000 before the MTC. It is clear that the MTC has no
jurisdiction. Ka Noli moved to dismiss the case and it was
dismissed. But Tomas appealed to the RTC believing that the
dismissal was wrong. Of course the order of the MTC is correct. It
should have been filed with the RTC.
The procedure under the OLD RULES is found on Section 22 of the

Interim Rules. When the case is appealed to the RTC, the case will
be decided by the RTC based on the record on appeal together with
a memorandum as the court may require the parties. In other
words, the court may or may not require the parties to file a
memorandum.
Q: What will happen now to the case?

NOW, the present rule says, within 15 days from notice, it is your
obligation to file a memorandum. If the appellant fails to file a
memorandum in the RTC, his appeal will be dismissed. The filing of
an appeal memorandum in the RTC is mandatory because you must
point out to the RTC kung saan nagkamali. You help the RTC judge
look for the error.
A: The RTC will not dismiss the case but instead assumes
jurisdiction. The RTC which has jurisdiction, shall try the case on the
merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
Q: Suppose the appellant has filed his memorandum and it is the

appellee who failed to file his memorandum. What is the effect of
such failure?
PROBLEM: Tomas files a case against Ka Noli for P500,000 before

the MTC. Ka Noli file a motion to dismiss on the ground of lack of
jurisdiction. But the motion to dismiss of Ka Noli was denied and
the court tried the case. So, the trial is void. The judgment
rendered is also void. So Ka Noli appealed.
A: Under paragraph [c], the case shall be submitted for decision

without appellees memorandum. And it does not necessarily
mean that the appellee will lose the case by not filing his
memorandum because for all you know the decision of the lower
court is very clear, whether he files a memorandum or not, he will
still wins.
Q: What will happen on appeal from the decision of the MTC which
tried a case even though it has no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the
RTC will assumes jurisdiction over the case. The RTC will convert
the appellate jurisdiction into an original jurisdiction instead of
dismissing an appeal. It will treat it as if it has been filed for the first
time in the RTC and not as an appealed case. The purpose here is
to avoid double payment of docket fees.
Another radical change is Section 8:

Sec. 8. Appeal from orders dismissing case
without trial; lack of jurisdiction. If an appeal
is taken from an order of the lower court
dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or
reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack
of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as
if the case was originally filed with it. In case
of reversal, the case shall be remanded for
further proceedings.
Sec. 9. Applicability of Rule 41. The other

provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to supplement
the provisions of this Rule. (n)
Rule 41 provisions may also be used in appeals from MTC to RTC. It
is more comprehensive. It refers to appeal from RTC to CA on cases
decided by the RTC pursuant to its original jurisdiction. This is also
applicable to Rule 40 insofar as they are not inconsistent.
If the case was tried on the merits by the

lower court without jurisdiction over the
subject matter, the Regional Trial Court on
appeal shall not dismiss the case if it has
original jurisdiction thereof, but shall decide
the case in accordance with the preceding
section, without prejudice to the admission
of amended pleadings and additional
evidence in the interest of justice. (n)
The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan of
P50,000 before the MTC. But upon motion to dismiss alleging that
MTC has no jurisdiction, the court dismissed the complaint without
401

Rule 41
[2] The judgment is final in the sense that it is not merely

interlocutory and this is for the purpose of applying the law
on appeal under Rule 41. In other words, a final order or
judgment (for purposes of appeal) is one which is not merely
interlocutory in the sense that it completely disposes of the
case or a particular matter therein where there is nothing
more for the court to do after its rendition. (Bairan vs. Tan Sui
Lay, L-19460, Dec. 28, 1966)
APPEAL FROM THE REGIONAL TRIAL COURTS

Majority of the important rules are found here in Rule 41.
Section 1. Subject of appeal. An appeal may
be taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by
these Rules to be appealable.
Q: What is the definition of a final judgment or for purpose of

appeal?
A: A judgment or order is final if it disposes of the pending action

so that nothing more can be done in the trial court with respect to
its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962;
Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)

reconsideration;
(b) An order denying a petition for relief or
any similar motion seeking relief from
judgment;
Q: On the other hand, what is an interlocutory judgment or

order?
A: An interlocutory order is something which does not completely
dispose of the action and there is still something for the court to do
after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs.
Fabrica, 80 Phil. 762) Actually, the law does not prohibit a party
from appealing an interlocutory judgment or order, only you
cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
(c) An interlocutory order;

(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake
or duress, or any other ground vitiating
consent;
Q: What is the test for determining whether a judgment or order

is final or interlocutory?
A: The test for the determination of whether a judgment or order is
final or interlocutory is this: Does it leave something to be done in
the trial court with respect to the merits of the case? If it does, it is
interlocutory, hence, you cannot appeal yet; if it does not, it is final
and therefore you can appeal. (Reyes vs. De Leon, L-3720, June 24,
1952)
(f) An order of execution;

therefrom; and
So you must know the meanings of the word final in civil

procedure to avoid confusion. A good example is Section 20 of Rule
3 where the word final was first mentioned:
(h) An order dismissing an action without

prejudice.
A: Only FINAL judgments or orders can be appealed as

distinguished from interlocutory judgments or orders (paragraph
[c])which are not appealable.
Rule 3, Sec. 20. Action on contractual money

claims. - When the action is for recovery of
money arising from contract, express or
implied, and the defendant dies before entry
of final judgment in the court in which the
action was pending at the time of such death,
it shall not be dismissed but shall instead be
allowed to continue until entry of final
judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the
manner especially provided in these Rules for
NOTE: If appeal is available, certiorari under Rule 65 cannot be

available!!
The word final here in Section 20 refers to the second meaning that
the judgment is final in the sense that it is not merely interlocutory
FINAL JUDGMENT OR ORDERSthe term final has two (2)

possible meanings in Civil Procedure:
BAR QUESTION: Plaintiff vs. Defendant. Defendant files a motion

to dismiss under Rule 16. The court granted the motion and
consequently ordered the dismissal of the complaint of the
plaintiff. Can the plaintiff appeal from the order dismissing his
complaint?
In all the above instances where the

judgment or final order is not appealable, the
aggrieved party may file an appropriate
special civil action under Rule 65. (n)
Q: What orders or judgment are subject to appeal ?
[1] The judgment is final in the sense that it is already

executory and that happens if there is no appeal. And that is
for purposes of applying Rule 39 on execution.
402

A: We will apply the test: Is there anything more for the court to do
after issuing the order of dismissal? Wala na! [Awanen!] Ano pa ba
ang gagawin eh na-dismiss na nga eh! Therefore, the order of
dismissal is a final order it has completely disposed of the case
hence, the plaintiff can appeal.
been resolved, if the latter issues are distinct and separate from
the others.
REPUBLIC vs. TACLOBAN CITY ICE PLANT 258 SCRA 145 [1996]
HELD: A court order is final in character if it puts an end to the
particular matter resolved or settles definitely the matter therein
disposed of, such that no further questions can come before the
court except the execution of the order. Such an order or judgment
may validly refer to the entire controversy or to some definite and
separate branch thereof.
PROBLEM: Lets modify the problem: Plaintiff vs. Defendant.

Defendant files a motion to dismiss under Rule 16. The court
denied the motion to dismiss. Can the defendant appeal from the
order of the court denying his motion to dismiss?
A: Again, we will apply the test: Is there anything more for the court
to do after denying the motion to dismiss of the defendant? Yes
because after the court denies such motion, the defendant will
now file his answer, then there will be pre-trial, trial, judgment.
Meaning, after denying the motion to dismiss, may trabaho pa ako.
Therefore, the order denying the motion to dismiss is interlocutory,
hence the defendant cannot appeal.
So the opening paragraph of Section 1 is in accordance with the

DAY and TACLOBAN cases. In other words, either the whole case is
disposed of or a particular matter therein has been disposed of.
Q: If I cannot appeal because Section 1 of Rule 41 prohibits an
appeal, is there a way of hastening the issue before the appellate
court in order to avoid the waste of time and effort and money of
entering into a trial which is null and void because of lack of
jurisdiction?
Q: So how do you appeal from an interlocutory order?

A: The procedure if there is an order which is against you but it is
not appealable, you have to wait. The case is to be tried and then
you have to wait for the final judgment to be rendered and if you
are dissatisfied with the judgment, that is the time you appeal from
the said judgment together with the interlocutory orders issued in
the course of the proceeding. (Mapua vs. Suburban Theaters, Inc.,
81 Phil. 311) So there should only be one appeal form that case.
Thats why, as a general rule, the law on Civil Procedure prohibits
more that one appeal in one civil action.
A: The answer is the last paragraph of Section 1:

In all the above instances where the
judgment or final order is not appealable, the
aggrieved party may file an appropriate
special civil action under Rule 65. (n)
So if appeal is not available, the correct remedy is an appropriate
special civil action under Rule 65. There are three civil actions
there: Certiorari, Prohibition, Mandamus.
The reasons why interlocutory orders are not appealable are to

avoid multiple appeals in one civil case since the order is
interlocutory and the court still continues to try the case in the
course of the proceeding, the court will realize its error and the
court may change its order so it will be given an opportunity to
corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)
The present Rule 41 tells us exactly what orders cannot be

appealed:
(a) An order denying a motion for new
trial or reconsideration;
Take note of the new rule saying that a judgment or order is final if
it disposes of the case or of a PARTICULAR MATTER. So, it is not
necessarily the whole case.
So when a motion for new trial or reconsideration is denied, there

is no appeal from that order. Your remedy is you appeal from the
judgment, not from the order denying your motion for new trial or
reconsideration. That is found on Rule 37, Section 9:
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against
B, X filed a motion to intervene and it was denied. Can X appeal the
denial? Now, it would seem that the order is interlocutory because
the court, after denying the motion to intervene, still has
something to do since the case between A and B will continue. But
according to the SC, YES, X can appeal because the order denying
the motion to intervene is final.
Section 9. Remedy against order denying a

motion for new trial or reconsideration.- An
order denying a motion for new trial or
reconsideration is not appealable, the
remedy being an appeal from the judgment
or final order.
But is it not true that the court has something to do after denying
such motion? Yes but what the SC is trying saying is that, as far as
Xs right is concerned, the court has nothing to do anymore.
Marami pa akong trabaho dito (case between A and B), pero kay X
wala na. That is why the order denying the motion to intervene is a
final order and is appealable. Kaya nga the test that there is
nothing more for the court to do is very confusing. In other words,
you divide the case into parts.
So the correct remedy is in Rule 37 you appeal from the

judgment, not from the order denying the motion for new trial
or reconsideration.
judgment;
DAY vs. RTC OF ZAMBOANGA CITY 191 SCRA 640
Paragraph [b] has changed some decided cases in the past. Before,
an order granting a petition for relief is interlocutory but an order
denying a petition for relief is final. NOW, wala na yan! Whether it
is an order granting or denying a petition for relief, you cannot
appeal.
HELD: An order which decides an issue or issues in a complaint is

final and appealable, although the other issue or issues have not
403

So what is remedy for such order? Go with special civil action under
Rule 65 as provided in the last paragraph of Section 1.
judgement of compromise on the ground of fraud, mistake or

duress or any other ground. Motion denied!
Give an example of an order denying a motion other than a petition

for relief: motion for new trial. So it is not appealable.
Q: Can you appeal?

A: NO. (paragraph [e])
Suppose I am declared in default, can I appeal from a DEFAULT

JUDGMENT ? The 1964 rules says, yes. You notice that such
provision is lost. There is no more direct provision on that. But still,
it is appealable. The provision in the old rules is not necessary.
There is nothing in paragraphs [a] to [h] prohibiting an appeal from
a default judgment. So it falls under the general rule.
Q: So what is my remedy?
A: You file a separate case for annulment for such judgment (Rule
47). In the case of
DOMINGO vs. CA 255 SCRA 189 [1996]
Q: How about the order to LIFT the order of default? Suppose you
file a motion to set aside the judgment of default and motion is
denied, can you appeal?
HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law.
A: NO, because the law says, an order denying any similar motion
seeking relief from judgment cannot be appealed. As a matter of
fact, the 1995 case of MANILA ELECTRIC COMPANY vs. CAMPANA
FOOD PRODUCTS (246 SCRA 77), there is no such remedy as a
motion to set aside an order of default but there is no provision in
the rules to set aside a judgment of default. The correct remedy is
to appeal from the judgment of default not to set aside. And that is
clear. The default judgment is appealable.
A compromise may however be disturbed and set aside for vices

of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or falsity in
the execution of the compromise embodied in a judgment, an
action to annul it should be brought before the Court of Appeals, in
accordance with Section 9(2) of Batas Pambansa Bilang 129, which
gives that court (CA) exclusive original jurisdiction over actions for
annulment of judgments of regional trial courts.
(d) An order disallowing or dismissing an appeal;

So, if an appeal is dismissed, you cannot appeal from the order
dismissing it. What is the remedy? The 1964 rules provides for the
remedy of mandamus. That is a direct provision because if the
appeal is on time , the duty of the court to grant due course to the
appeal is ministerial. There is no more such provision in the present
rules because it is already provided in the last paragraph.
So you cannot appeal from an order of execution because if we will

allow the losing party to appeal from an order of execution, then
there will be no end to litigation. Kaya nga execution, eh it means
tapos na ang kaso. That case is finished, decided, final.
But suppose the order of execution contains portions which are not
found in the judgment, meaning, the order of execution is changing
the judgment which should not be done, then obviously, the
correct remedy is certiorari under Rule 65 because of grave abuse
of discretion.
Another possible remedy where an appeal is allowed aside from

the mandamus is if I lost my right to appeal because of fraud,
mistake accident and inexcusable negligence, the other possible
remedy is a petition for relief from judgment denying my appeal
and that is found in Rule 38, Section 2:
Rule 38, Sec. 2. Petition for relief from denial
of appeal. When a judgment or final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented
from taking an appeal, he may file a petition
in such court and in the same case praying
that the appeal be given due course. (1a)

therefrom;
The best example of a judgment of final order where there are
separate claims is found in Rule 36. There could be more than one
judgment in one civil case and there can be more than one decision
judgment on the main action, on the counterclaim, etc. (c.f.
Sections 4 and 5, Rule 36)
So, aside from the remedy under Rule 65, the other possible
remedy is a petition for relief from the order denying the appeal.
consent;
Q: Everytime a judgment is issued, can you appeal already form the

first judgment when there will be a second judgment in that civil
action? Can you appeal from all these separate judgment?
A: No, unless the court allows an appeal therefrom. Generally, you
have to wait for all the judgments to be rendered before you can
appeal because, normally, there can be no appeal from every
judgment rendered. A good example of this is in the case of
PROBLEM: So there is a judgement by consent (cognovit judgment)

and the motion to set aside such judgment is denied. The order of
denial is not appealable. So again, there is judgement by confession
or compromise and then you file a motion to set aside the
404

PROVINCE OF PANGASINAN vs. CA 220 SCRA 726
Rule 16, Sec. 5. Effect of dismissal. Subject to

the right of appeal, an order granting a
motion to dismiss based on paragraphs (f),
(h) and (i) of section 1 hereof shall bar the
refiling of the same action or claim.
FACTS: This was a partial summary judgment under Rule 35. Is it

appealable? One party claims that a partial summary judgment is
appealable because of Rule 36, where the court allows an appeal
therefrom. But according to the Supreme Court:
Rule 16, Section 1. Grounds. Within the time

for but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the
following grounds:
HELD: A partial summary judgment is not covered by Rule 36. It is

governed by Rule 35 and there is no appeal because it is merely
interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated on
motion. If on motion under this Rule,
judgment is not rendered upon the whole
case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the
motion, by examining the pleadings and the
evidence before it and by interrogating
counsel shall ascertain what material facts
exist without substantial controversy and
what are actually and in good faith
controverted. It shall thereupon make an
order specifying the facts that appear
without substantial controversy, including
the extent to which the amount of damages
or other relief is not in controversy, and
directing such further proceedings in the
action as are just. The facts so specified shall
be deemed established, and the trial shall be
conducted on the controverted facts
accordingly.
(f) That the cause of action is barred by a

prior judgment or by the statute of limitations;
(h) That the claim or demand set forth in the
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;
Another new provision is Section 2. But, actually, the principles are
not new. How do you appeal from the RTC to the CA? (or to a
higher court) Take note that Section 2 tells us that there are 3
possible ways:
1)
2)
Q: When can there be a partial summary judgment?
3)
A: When some portions of a claim are substantially controverted

and the rest are not substantially controverted. So the court is
authorized to render a partial summary judgment on the claim
where there is no genuine issue we continue trying the case with
respect to the claim where there is a genuine issue. So there will be
two judgments. A summary judgment for one claim and an
ordinary judgment for the other claim. So nauna yung partial
summary judgment.
Ordinary Appeal (in cases decided by the RTC pursuant to

its original jurisdiction)
Petition For Review (in cases decided by the RTC pursuant
to its appellate jurisdiction)
Appeal By Certiorari (appeal from RTC direct to the SC on
pure questions of law)
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the
judgment or final order appealed from and
serving a copy thereof upon the adverse
party. No record on appeal shall be required
except in special proceedings and other cases
of multiple or separate appeals where the
law or these Rules so require. In such cases,
the record on appeal shall be filed and served
in like manner.
Q: Can you appeal from there immediately?

A: NO, you have to wait for the other judgment to come out. You
cannot appeal from that partial summary judgment while the main
case is pending, unless the court allows appeal therefrom.
prejudice.
Ordinary Appeal is the mode of appeal from RTC to CA in cases

decided by the RTC pursuant to its original jurisdiction.
If an action is dismissed without prejudice, it cannot be appealed

because, as it is without prejudice, you can re-file the case. But
supposed the dismissal without prejudice is arbitrary, and I dont
want to re-file because it is too costly and I really want to question
the court dismissing my case without prejudice, I want to challenge
the order. Now, because appeal is not appealable, your remedy is
Rule 65 on certiorari.
Just like in Rule 40, you file a notice of appeal with the RTC
furnishing the adverse/losing party. No record on appeal shall be
required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require.
(b) Petition for review.- The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
Q: Give examples of dismissal of cases without prejudice.

A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h], [i]):
405

Actually, this was already touched in Judiciary Law. How do you

appeal to the CA from the RTC in cases decided by the RTC
pursuant to its appellate jurisdiction? not by ordinary appeal but
by petition for review.
ORDINARY APPEAL (par. A)
PETITION FOR REVIEW (par.

B)
The case was decided by the

RTC pursuant to its original
jurisdiction. The case was
originally filed in the RTC.
The case was decided by the

RTC pursuant to its appellate
jurisdiction (governed by Rule
42)
The period to appeal is 15 days. And when a record on appeal is

required, the period to appeal is doubled 30 days.
Section 3 is already amended. It now specifically provides the
period to appeal in cases of habeas corpus, which is 48 hours. This
is because the SC made an error in one of the latest cases involving
Rufus Rodriguez as Immigration Commissioner, where the SC ruled
that the period to appeal in habeas corpus cases is 15 days since
the 48-hour period disappeared in the 1997 Rules. So many got
confused now.
So when I had a talk with Justice Panganiban last year during the
celebration of the 100 years of SC here in Davao, I opened this
issue to him. Sabi ko, Mali man yung ruling nyo ba. Under the
judiciary law, it is 48-hours! Two months after the conversation,
Section 3 was amended. [ehem!]
EXAMPLE: You filed an action for recovery of money amounting to

P1 million. Obviously the jurisdiction is in the RTC. Now, natalo ka
and you want to go to the CA. What is your mode of appeal?
Ordinary Appeal because the case was decided by the RTC pursuant
to its original jurisdiction.
Alright, the period to appeal shall be interrupted by timely motion

for new trial or motion for new consideration provided that the
motion for new trial is not a pro forma motion (Rule 37, Section 2).
EXAMPLE: In paragraph B, the case is recovery of sum of money

amounting to P50,000. Saan i-file yan? MTC man yan ba. Now, you
lose, where will you appeal and what is the mode of appeal? RTC
by Ordinary appeal. Suppose, talo ka pa rin sa RTC and you want to
go to CA. This time, the mode of appeal is not by ordinary appeal
but by petition for review because the case now being appealed
has been decided by the RTC pursuant to its appellate jurisdiction.
LABITAD vs. CA 246 SCRA 434 [1995]

FACTS: You receive a judgment on January 31. You filed a motion
for reconsideration on February 10. So, interrupted and then on
February 20, you receive the order denying the motion for
reconsideration. When is the last day to appeal?
(c) Appeal by certiorari - In all cases where

only questions of law are raised or involved,
the appeal shall be to the Supreme Court by
petition for review on certiorari in
accordance with Rule 45.
HELD: The last day is February 26. The filing of a motion for new
trial or reconsideration is not counted in the 15-day period. Upon
the filing in February 10, it is already interrupted. So, you did not
consume 10 days. You consumed only 9 days.
This goes back to the jurisdiction of the SC. The SC has exclusive,
appellate jurisdiction in certain cases constitutionality of a law,
treaty is in issue, jurisdiction of the court is in issue, and when only
questions of law are being raised.
The period to appeal is suspended if a motion for reconsideration

or one for a new trial is filed, which, if denied, continues to run
upon receipt of the order denying the same as if no interruption
has occurred. The time during which a motion for reconsideration
or one for new trial has been pending shall be counted from the
date the motion is duly filed to the date when the movant is duly
notified of the denial thereof.
So the case is in the RTC and you lost. You would like to appeal on
pure question of law. Now, do not go to the CA for it has no
jurisdiction. You by-pass CA and go directly to the SC on appeal by
certiorari in accordance with Rule 45.
The period during which the motion is pending with the trial court
includes the day the same is filed because the motion shall have
been already placed under the court's consideration during the
remaining hours of the day. The very date the motion for
reconsideration has been filed should be excluded from the appeal
period.
NOTE: Only in exercise of its original jurisdiction.

What is the period to appeal? Section 3:
Sec. 3. Period of ordinary appeal. The appeal
shall be taken within fifteen (15) days from
notice of the judgment or final order
appealed from. Where a record on appeal is
required, the appellant shall file a notice of
appeal and a record on appeal within thirty
(30) days from notice of the judgment or final
order. However, an appeal in habeas corpus
cases shall be taken within forty-eight (48)
hours from notice of the judgment or final
order appealed from.
So how do you reconcile this pronouncement with the rule that the
first day is excluded and the last day is included? The answer is
found in Rule 22, Section 2:
Rule 22, Sec. 2. Effect of interruption.- Should an
act be done which effectively interrupts the
running of the period, the allowable period after
such interruption shall start to run on the day after
notice of the cessation of the cause thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the
period. (n)
The period of appeal shall be interrupted by a

timely
motion
for
new
trial
or
reconsideration. No motion for extension of
time to file a motion for new trial or
reconsideration shall be allowed.
406

RULE 40, Section 5. Appellate court and other

lawful fees. - Within the period for taking an
appeal, the appellant shall pay to the clerk of the
court which rendered the judgment or final order
appealed from the full amount of the appellate
court docket and other lawful fees. Proof of
payment thereof shall be transmitted to the
appellate court together with the original record
or the record on appeal, as the case may be. (n)
RUBIO vs. MTCC OF CAGAYAN DE ORO CITY 252 SCRA 172

FACTS: The period to file a motion for new trial or reconsideration
is within the period to appeal which is 15 days, kaya walang
extension. Now this is what happened. The court issued an
interlocutory order. After two months, one of the parties filed a
motion for reconsideration and, of course, the other party said, no
more, you should file the motion within 15 days. You cannot file
beyond the 15-day period. Is that correct?
Q: Suppose the person appealing from the MTC to the RTC failed to
pay the appeal fee under Rule 40, can the appeal be dismissed ?
HELD: NO. That is wrong because an interlocutory order cannot be

appealed hence, the 15-day period does not apply. You can file
your motion for reconsideration anytime for as long as the court
still has jurisdiction over the case.
A: No, because it is not one of the requisites. That was the ruling in
SANTOS vs. CA. That can be collected from you later but that is not
a requisite. The appeal cannot be dismissed.
The 15-day period only applies when the order is final. But when
the order is interlocutory, you can file it anytime because there is
no definite period for the court to change it. For as long as the
court has jurisdiction over the case, it has the power to change that
wrong order.
We will ask the same question under Section 4 Rule 41. BUT this
time, you are appealing from the RTC to the CA and this contains an
identical provision that when you are appealing from the RTC to
the CA, you already pay there with the clerk of court of the RTC the
docket fee. Bayaran mo na, siya na ang bahalang mag-forward.
Heres the problem:
The period subject to interruption by a motion for reconsideration

is the period to appeal. An interlocutory order is not appealable if
there is accordingly no period to suspend or interrupt.
Q: You failed to pay the docket fee within 15 days. So, when the
case was transmitted to the CA, hindi kasali yung fee no. Now, can
your appeal be dismissed on the ground of failure to pay the docket
fee or not in accordance with the ruling in SANTOS (by analogy,
although in this case, the appeal is from the MTC to the RTC. Pero
the same, hindi ka rin magbayad ng docket fee.) Is the ruling in
SANTOS also applicable to Rule 41 ?
Sec. 4. Appellate court docket and other lawful

fees. Within the period for taking an appeal,
the appellant shall pay to the clerk of the
court which rendered the judgment or final
order appealed from, the full amount of the
appellate court docket and other lawful fees.
Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal. (n)
A: NO, the ruling in SANTOS is not applicable. Your appeal will be

dismissed.
Q: What provision of the Rules authorizes such dismissal? Is there
any direct provision of the Rules of Court which authorizes the
dismissal of the appeal by non-payment of the appeal docket fee?
Under the law, within the period for taking an appeal, the appellant
shall only pay to the clerk of court of the RTC which rendered the
judgment or final order the full amount of the appellate court
docket fee and all other lawful fees and the proof of payment shall
be transmitted to the CA together with the original record on
appeal.
A: YES. Rule 50 Section 1 [c];

RULE 50, Section 1 An appeal may be
dismissed by the Court of Appeals, on its own
motion or on that of the appellee. on the
following grounds:
xxxx
(c) Failure of the appellant to pay the docket
and other lawful fees as provided in Section 4
of Rule 41 ;
xxxx
Q: How does this amend the Old law ?

A: Under the OLD Law, when you appeal from the RTC to the CA ,
you just file a notice of appeal. You do not pay anything, you do not
pay the appellate docket fee. So the records will be transmitted
upon order of the clerk of court.
I believe that it is dismissible because of that. So, to my mind, the

SANTOS vs. CA ruling which governs Rule 40 and which for me is
valid, is NOT APPLICABLE to Rule 41 because there is a direct
provision in Rule 50 that an appeal can be dismissed for
non-payment of appeal docket fee. That is the difference between
these two situations.
Pagdating sa CA, later on, the clerk of court there will communicate
to the appellant na the records are there already, magbayad ka ng
docket fee within so many days. So, mamaya mo na bayaran,
hintayin mo munang mapunta doon at hintayin mo ang notisya.
NOW, you do not wait. Pag - file mo ng notice of appeal, you PAY
IMMEDIATELY. When you appeal, bayaran mo na ang CA docket fee
sa RTC clerk and then pag-transmit, sabay na! That is the change.
NOTICE OF APPEAL
Now, let us go back to Section 5 of Rule 41;
If we will notice, the counterpart is Section 5 Rule 40 yung appeal

from the MTC to the RTC:
Sec. 5. Notice of appeal. The notice of appeal

shall indicate the parties to the appeal,
407

specify the judgment or final order or part

thereof appealed from, specify the court to
which the appeal is being taken, and state
the material dates showing the timeliness of
the appeal. (4a)
HELD: YES. The validity of the judgment was not affected by the
defendants demise for the action survived (partition, eh). The
decision is binding and enforceable against the successor-ininterest of the deceased litigant by title subsequent to the
commencement of the action pursuant to Section 47 [b] of Rule
39Rule on Res Judicata.
Ano ba ang nakalagay sa notice of appeal? Its very clear there that
you indicate the parties to the appeal, specify the judgment and
state the material date showing the timeliness of the appeal.
Now, in our outline in appeal, the general rule is when you appeal,
you only file a notice of appeal and you pay the docket. The
important requirement there is notice of appeal but, we said in
some cases, aside from notice of appeal, there is a second
requirement which is the RECORD ON APPEAL.
Do you know how to do it? Its very simple. The defendant merely
says; Defendant hereby serves notice that he is appealing to the CA
on questions of fact or on questions of fact and law the judgment of
the Honorable Court (RTC) dated December 20, 1997, copy of which
was received by me on January 5, 1998. So it is simple that only 15
days is required to file the notice. When the law says the period to
file an appeal is non-extendible, that is fair. I do not need 15 days
to prepare the notice of appeal. You can do it only in two minutes.
[sobra pa sa quicky!!]
This time, the period to appeal is not only 15 but 30 days and a
record on appeal is only required in special proceedings or in civil
cases where multiple appeals are allowed. Never mind special
proceedings, saka na yun. It sounds strange because what weve
studied so far, multiple appeals are not allowed in civil cases, there
should only be one appeal. Kaya nga interlocutory orders are not
appealable, precisely to avoid order on appeal in a civil case. We
will explain this later.
So you must state the date when you received because the
computation of the 15-day period is from the receipt of the
judgment and NOT from the date of the judgment. This is the socalled the MATERAL DATA RULE material dates showing
timeliness of appeal. The date received and the date of decision are
not the same. Both dates must be included in the notice of appeal.
RECORD ON APPEAL
Sec. 6. Record on appeal; form and contents
thereof. The full names of all the parties to
the proceedings shall be stated in the caption
of the record on appeal and it shall include
the judgment or final order from which the
appeal is taken and, in chronological order,
copies of only such pleadings, petitions,
motions and all interlocutory orders as are
related to the appealed judgment or final
order for the proper understanding of the
issue involved, together with such data as
will show that the appeal was perfected on
time. If an issue of fact is to be raised on
appeal, the record on appeal shall include by
reference all the evidence, testimonial and
documentary, taken upon the issue involved.
The reference shall specify the documentary
evidence by the exhibit numbers or letters by
which it was identified when admitted or
offered at the hearing, and the testimonial
evidence by the names of the corresponding
witnesses. If the whole testimonial and
documentary evidence in the case is to be
included, a statement to that effect will be
sufficient without mentioning the names of
the witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject
index. (6a)
Now, kung sabihin mo na I am appealing from the judgment of the

court dated December 20, 1997, and hindi mo sinabi kung kailan
mo natanggap, the presumption is you also received the copy of
the judgment on December 20, 1997. And then you are appealing
today, it will be dismissed because you did not state the material
dates.
And of course, there is one SC decision which said that you do not
only specify the final judgment or order, but you also specify as
much as possible the interlocutory orders from where you are
appealing because interlocutory orders can only be appealed at this
time. So, isabay mo na rin, i-one time ba!
In the case of
HEIRS OF MAXIMO RIGOSO vs. CA 211 SCRA 348
FACTS: Plaintiff filed an action against defendant for partition of
property. While the action was pending, defendant died. Partition
is an action which survives. Defendants lawyer failed to inform the
court about plaintiffs death (it is the lawyers duty which he did
not do). So with that, there was no proper substitution. Later,
judgment was rendered against the deceased defendant. But after
the decision came out, the lawyer of the defendant filed a notice of
appeal in accordance with Rule 41.
ISSUE #1: Was the appeal properly made?
A record on appeal is simply a reproduction of all the pleadings

filed by the parties, all the motions filed by the parties, all the
orders issued by the court and the final judgment rendered by the
court arranged in chronological order.
HELD: NO. Upon the death of the defendant, the lawyers authority
to represent him already expired. There was an automatic
expiration of the lawyer-client relationship. The notice of appeal
which the lawyer filed in behalf of the deceased was an
unauthorized pleading, therefore not valid.
For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on

appeal. Normally, it starts with this phrase
ISSUE #2: Is the judgment binding to the defendants heirs

(remember, they were not substituted)?
Be it remembered the following proceedings took

place in the court below:
408

FACTS: Municipality of Binan filed expropriation cases against

several landowners because it would like to expropriate their land
for public use. All of them were named as co-defendants in one
complaint. Landowner A filed a motion for separate trial (Rule 31).
The court granted it. The court rendered a decision expropriating
the land of A. Nauna siya. As for the other landowners, the case
continued.
Par. 1. On January 5, 1998, plaintiff filed a

complaint against defendant as follows: -- (so
kopyahin mo yung complaint. Practically it is
mechanical work, eh.)
Par. 2. On January 25, 1998, defendant filed an
answer (kopyahin mo ang answer)
Par. 3. On March 5, 1998, the court rendered
judgment (kopyahin mo na naman.)
ISSUE #1: Can A appeal already from the decision rendered against
him or must he wait for the decision to be rendered against the
other landowners?
How long? Gaano kakapal yan? Depende. For example, the case
lasted for more than two years. So practically, the record on appeal
may amount to hundreds of pages. That is why the period to
appeal is increased from 15 to 30 if the law requires a record on
appeal because of the possibility that you may not be able to
complete everything within 15 days. Sometimes the 30-day period
can be extended.
HELD: YES, A can now appeal because the order was already final
against A. There is something more for the court to do but only
with respect to the other defendants. But as far as A is concerned,
there is nothing more for the court to do.
So when the judgment is already rendered against the other
landowners, they can now also appeal. So there could be two or
more final judgments and two or more appeals.
Q: Do you have to include there every motion, every order of the

case?
ISSUE #2: Suppose the case was tried against all of them (sabay ba)
and there was one decision against themso sabay-sabay sila magappeal. Is record on appeal required?
A: No, the law says you reproduce in chronological order copies of

only such pleadings, motions, petitions, and all interlocutory orders
as are related to the appealed judgment or final order for the
proper understanding of the issues involved. This is to allow the
appellate court to review the order appealed from.
HELD: NO, only notice of appeal because there is only one decision.
Q: Why is it that in ordinary civil cases, normally a record on
appeal is not required?
But there are some motions na hindi na kailangan. For example,

the case will be set for trial next week. Sabi ng defendant, Motion
to postpone, I am not ready because I am suffering from diarrhea.
So the trial was postponed. Kailangan pa bang ilagay ang motion na
yan? That is not necessary to understand the issue. Piliin mo lang
ang importante.
A: Ordinarily, when the case is over and you say that you are
appealing, the entire record of the case will be elevated to the CA.
But in the case of BIAN, there is judgment against landowner A
and he wants to appeal, the record cannot be brought to the CA
because the case will still be tried with respect to landowners B, C
and D. So for the CA to know what happened, a record on appeal is
needed.
Now, bakit kailangan yang record on appeal? Bakit sa ordinary

appeal, hindi man kailangan? Because in Ordinary Civil Actions,
when the appeal is perfected, the clerk of court of the RTC
transmits the entire record to the CA. So andoon na lahat yan. But
in special proceedings or in civil cases where multiple appeals are
allowed, when an order or judgment is rendered, the case
continues pa. So, the records are not yet elevated. So, how can the
CA understand what happened without the records? That is called
the record on appeal.
ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. CA 258 SCRA

186 [1996]
HELD: Multiple appeals are allowed in:
1)
2)
3)
4)
Q: Give an example of a civil action where multiple appeals are

allowed.
A: Section 4 of Rule 36, where several judgments will be rendered
in one case:
5)
Special proceedings;
Actions for recovery of property with accounting;
Actions for partition of property with accounting;
Special civil actions of eminent domain
(expropriation);
Special civil actions for foreclosure of mortgage.
The rationale behind allowing more than one
appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and
distinct case is resolved by the court and held to be
final.
RULE 36, Sec. 4. Several judgments - In an

action against several defendants, the court
may, when several judgment is proper,
render judgment against one or more of
them, leaving the action to proceed against
the others. (4)
The enumeration cited in ROMAN CATHOLIC CASE is taken from the

ruling of the SC in the cases of MIRANDA vs. CA (71 SCRA 295) and
DE GUZMAN vs. CA (74 SCRA 222). In these cases, when you file
only a notice of appeal without the record on appeal, it will not
suffice. So it will be dismissed.
And to be more specific, that rule was applied by the SC in the case
of
MUNICIPALITY OF BIAN vs. GARCIA 180 SCRA 576
Q: What if the party filed a record on appeal without a notice of

appeal? Should the appeal be dismissed?
409

case BUT by express provision of the law, the order is already

appealable. That is an instance where multiple appeals may arise in
one civil case.
A: NO, the appeal will not be dismissed because the filing of the
record on appeal is harder to comply with than the filing of a notice
of appeal. The filing of the record on appeal is more expressive of
the desire of the party to appeal. (Peralta vs. Solon, 77 Phil. 610)
Another example is Rule 69 on Partition:
(The following discussions under Section 6 was taken from the 4th
year review transcription) Now, let us try to tie this up with what
may be appealed and what may not be appealed, lets go back to
section 1 [g] of Rule 41:
RULE 69, Sec. 2. Order for partition, and

partition by agreement thereunder. - If after
the trial the court finds that the plaintiff has
the right thereto, it shall order the partition
of the real estate among all parties in
interest. Thereupon the parties may, if they
are able to agree, make the partition among
themselves by proper instruments of
conveyance, and the court shall confirm the
partition so agreed upon by all the parties,
and such partition, together with the order of
the court confirming the same, shall be
recorded in the registry of deeds of the place
in which the property is situated. (2a)
Section 1. Subject of appeal. - An appeal may be

taken from a judgment or final order that
completely disposes of the case, or of a particular
matter therein when declared by these Rules to be
appealable.
xxxxx
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom.
xxxxx
A final order decreeing partition and

accounting may be appealed by any party
aggrieved thereby. (n)
A final order decreeing partition is appealable. But the case will go
on because if the first order is that there is a co-ownership, then
there should be a partition. Ang sunod is how to partition. As a
matter of fact, the court may even hire commissioners as to how to
partition but in the meantime, the order to partition is already
appealable although it did not completely disposed of the civil
action.
Take note that as a GENERAL RULE: a judgment for or against one

or more of several parties or in separate claims, counterclaims,
cross-claims, etc., while the main case is pending, cannot be
appealed because that will result to multiple appeals, unless the
court allows an appeal therefrom, in which case, multiple appeals
would now be possible.
Q: Cite examples of civil actions where, by direct provision of the
Rules, the law mentions that the judgment is already final and
appealable despite the fact that the case still goes on with respect
to the other issues.
Sec. 7. Approval of record on appeal. Upon the

filing of the record on appeal for approval
and if no objection is filed by the appellee
within five (5) days from receipt of a copy
thereof, the trial court may approve it as
presented or upon its own motion or at the
instance of the appellee, may direct its
amendment by the inclusion of any omitted
matters which are deemed essential to the
determination of the issue of law or fact
involved in the appeal. If the trial court
orders the amendment of the record, the
appellant, within the time limited in the
order, or such extension thereof as may be
granted, or if no time is fixed by the order
within ten (10) days from receipt thereof,
shall redraft the record by including therein,
in their proper chronological sequence, such
additional matters as the court may have
directed him to incorporate, and shall
thereupon submit the redrafted record for
approval, upon notice to the appellee, in like
manner as the original draft. (7a)
A: The case of MUNICIPALITY OF BIAN vs. GARCIA which is now

expressly provided for in Rule 67, Section 4, (on Expropriation):
Sec. 2. Entry of plaintiff upon depositing value
with authorized government depositary
Upon the filing of the complaint or at any
time thereafter and after due notice to the
defendant, the plaintiff shall have the right to
take or enter upon the possession of the real
property involved if he deposits with the
authorized government depositary an
amount equivalent to the assessed value of
the property for purposes of taxation to be
held by such bank subject to the orders of the
court. Such deposit shall be in money, unless
in lieu thereof the court authorizes the
deposit of a certificate of deposit of a
government bank of the Republic of the
Philippines payable on demand to the
authorized government depositary. x x x x x x
Did you notice that an Order of Expropriation MAY BE APPEALED?

When there is an order of expropriation - the court says, Alright,
the property is declared expropriated. Tapos na ba ang case? NOT
YET because there is still a Part 2 which the determination of just
compensation. So, technically, it does not yet really dispose of the
It boils down to the trial court file notice of appeal

and pay docket fees.
What you have to remember here is that in appeals, where a

record on appeal is required, the law requires an approval. The
record on appeal has to be approved by the court. In ordinary cases
where you only file a notice of appeal, approval is not required. A
410

record on appeal has to be approved because the other party is

given the right to object your record on appeal.
perfected as to him upon the filing of the

notice of appeal in due time.
The possible grounds for objections are necessary pleadings were

not produced like kulang-kulang ang record on appeal [kulangkulang din siguro yung nag-file]; or, you did not reproduce the
pleading properly; to pester the other party and just to block the
approval, like i-reklamo kahit wrong spelling lang. [peste talaga!]
A partys appeal by record on appeal is

deemed perfected as to him with respect to
the subject matter thereof upon the approval
of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection
of the appeals filed in due time and the
expiration of the time to appeal of the other
parties.
Sec. 8. Joint record on appeal. Where both

parties are appellants, they may file a joint
record on appeal within the time fixed by
section 3 of this Rule, or that fixed by the
court. (8a)
In appeals by record on appeal, the court

loses jurisdiction only over the subject matter
thereof upon the approval of the records on
appeal filed in due time and the expiration of
the time to appeal of the other parties.
Q: Is it possible that both sides will appeal?

A: Yes, when both are not satisfied.
Suppose both plaintiff and defendant will want to appeal and a
record on appeal is required, it would be tedious. Para walang gulo
at para makatipid, the plaintiff and the defendant will file a joint
record on appeal, tapos hati tayo sa gastos.
In either case, prior to the transmittal of the

original record or the record on appeal, the
court may issue orders for the protection and
pending appeal in accordance with section 2
appeal. (9a)
WHEN APPEAL IS DEEMED PERFECTED

Let us now go to Section 9 of Rule 41 which is one of the most
important provisions when is appeal deemed perfected. Now, if
you are asked this question: HOW DO YOU PERFECT AN APPEAL?
This question is not the same as WHEN IS THE APPEAL DEEMED
PERFECTED?
WHEN ONLY NOTICE OF APPEAL IS REQUIRED

Q: How do you perfect an appeal?
Q: When only a notice of appeal is required, when is an appeal
deemed perfected?
A: By:
1)
2)
Filing a NOTICE OF APPEAL, generally within 15 days; or

by
Filing A NOTICE OF APPEAL and RECORD ON APPEAL
WITHIN 30 DAYS.
A: First and third paragraph: A partys 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.
x x x In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
Those are the steps taken to perfect the BUT the appeal is NOT YET
PERFECTED. It is perfected according to Section 9, and it is
important to determine the exact date when the appeal is
considered as perfected because of the doctrine that from the
moment the appeal is perfected, the RTC automatically loses
jurisdiction of the case. And by fiction of law, the jurisdiction is
automatically transferred to the CA, although the records as still
with the RTC. Therefore it is important to determine the exact date.
This was taken in the case of DELGADO vs IAC (147 SCRA 258). Lets
compose a problem based on that case:
PROBLEM: I received a copy of the decision on March 31 so I have
15 days to appeal i.e. up to April 15. My opponent received the
decision on April 10. So ang opponent ko naman ang bilang niya is
from April 10 to April 25. Iba ang 15 days niya, iba din sa akin.
For example, in notice of appeal, is it perfected on the very day

that the appellant will file a notice of appeal that if he files it, after
two days perfected na?
Q: Since I received the decision on March 31, I filed my notice of

appeal on April 5, is the appeal perfected?
All of these are answered by Section 9 and I noticed that Section 9

has improved on the language of the Interim Rules. Under the
Interim Rules, they are actually the same, the question when is the
appeal deemed perfected is also answered by the Interim Rules but
the language of the law there is more convoluted. Now, it is more
clearer:
A: Yes, as far as I am concerned.

Q: How about the other side?
A: Not yet, because as of April 5, he has not yet received a copy of
the decision. He will start computing from April 10. So as of now, it
is already perfected only by 50%.
Sec. 9. Perfection of appeal; effect thereof. A

partys appeal by notice of appeal is deemed
411

Q: Suppose by April 25 which is the last day of 15-day period of my

opponent, he did not file anything. Nag-expire na. What will
happen now?
The motion for execution has to be set for hearing. The judgment
debtor has to be heard. The good reasons for execution pending
appeal have to be scrutinized. These things cannot be done within
the short period of fifteen days, or in this case, two days. The trial
court may be confronted with other matters more pressing that
would demand its immediate attention.
A: Then as of April 25, the appeal is now fully perfected (100%)

because as far as I am concerned, I have already filed a notice of
appeal. As far as he is concerned, his 15-day period to appeal has
lapsed. Therefore, the case is now ripe for elevation. This is what
the third paragraph means, In appeals by notice of appeal, the
court loses jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to appeal of
the other parties. You have to look at it from the viewpoint of both
parties.
So in this case, the court has not yet lost jurisdiction the act on the
motion for execution pending appeal even if it is beyond 15 days,
provided the motion was filed within 15 days.
WHEN RECORD OF APPEAL IS REQUIRED
Q: How about an appeal where a record of appeal is required?
When is the appeal deemed perfected?
That is the time for the clerk of court to elevate the records. It is
from that moment that the court has lost 100% jurisdiction over
the case from the viewpoint of both parties.
A: Second paragraph of Section 9: A partys 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. So it is not upon the filing of the record of appeal, but
upon the APPROVAL. Because as we said, under Section 7, a record
on appeal has to be approved while a notice of appeal need not be
approved.
Up to now, despite this provision, Im still receiving these kind of

orders from the courts. Nakalagay doon: A notice of appeal having
been filed by the defendant on this date, the appeal is now deemed
perfected and let the record now be elevated to the CA. My Golly!
This is WROOOONG! The appeal is perfected only as far as the
defendant is concerned why decree it as perfected? Tiningnan mo
lang yung isang side eh. Paano kung yung plaintiff mag-file pa ng
motion for execution pending appeal?
As to the fourth paragraph: In appeals by record on appeal, the

court loses jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time and the
expiration of the time to appeal of the other parties. The principle
is the same. But definitely an appeal is not perfected upon the filing
of the record on appeal but upon the approval.
So, do not elevate the record until the 15-day period has expired
on BOTH SIDES. This is the correct interpretation of the Rules. We
will now go to some interesting cases:
UNIVERSAL FAR EAST CORP. vs. CA 131 SCRA 642
The last point to remember in Section 9. GENERAL RULE: once an

appeal is deemed perfected from the viewpoint of both sides, the
trial court loses jurisdiction over the case. The jurisdiction is
automatically transferred to the Court of Appeals.
FACTS: On March 31, both Epi and Hilde received a copy of the
decision. Epi won, Hilde lost. From the viewpoint of both, April 15 is
the last day to appeal. On April 5, Hilde filed a notice of appeal. So
the appeal is perfected from the viewpoint of Hilde. On April 13,
Epi file a motion to execute pending appeal. Was the motion filed
on time? Yes, because Epi can file the motion between March 31
and April 15. On April 25, the court granted Epis motion.
Q: Are there EXCEPTIONS to the rule? Are there things that the
trial court can do even if it has no more jurisdiction? What things
or actions can the trial court do?
A: Last paragraph of Section 9: In either case, prior to the
transmittal of the original record or the record on appeal, the court
may issue orders for the protection and preservation of the rights of
the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal.
This is now the argument of Hilde: [My Golly!] The order of

execution by Epi is void because the court has already lost
jurisdiction over the case as of April 25 because From the viewpoint
of both parties, the last day is April 15, after April 15 the period
within which Epi can file a motion to execute has expired. From the
viewpoint of Hilde, he already filed a notice of appeal on April 5. So,
from the viewpoint of both, the court already lost jurisdiction.
Lets us outline the last paragraph: Once an appeal is deemed

perfected under Section 9, the RTC loses jurisdiction over the case
and can no longer act in that case.
According to Epi: But I filed my motion on April 13, the court has
not yet lost jurisdiction. Ah Yes, sabi naman ni Hilde, but the
court acted on your motion on April 25, which is after April 15.
Q: What things or what actions can the RTC do even if it has

technically lost jurisdiction over the case? Sometimes they call
this as the residual jurisdiction, a.k.a. dukot jurisdiction.
HELD: Epi is correct. The important point is the date of filing. Thus,
even if the court acts beyond the 15-day period, the order is still
valid. The important thing is the motion to execute pending appeal
was filed within the 15-day period.
A: For as long as the original record or the record on appeal is not

yet transmitted (because it takes some time for the records to be
transmitted) the trial court, despite the fact that it has already lost
jurisdiction, can do the following acts:
It may be argued that the trial court should dispose of the motion
for execution within the reglementary fifteen-day period. Such a
rule would be difficult, if not impossible, to follow. It would not be
pragmatic and expedient and could cause injustice.
1)
412
to issue orders for the protection and preservation of the

rights of the parties which do not involve in any matter
litigated in the appeal;

2)
3)
4)
5)
6)
to approve compromises between the parties;

to permit appeals to indigent litigants;
to order executions pending appeal in accordance with
Section 2 of Rule 39; and
to allow the withdrawal of the appeal.
The court can order the dismissal of an appeal under
Section 13, Rule 41.
stenographers concerned shall transcribe

such testimonial evidence and shall prepare
and affix to their transcripts an index
containing the names of the witnesses and
the pages wherein their testimonies are
found, and a list of the exhibits and the pages
wherein each of them appears to have been
offered and admitted or rejected by the trial
court. The transcripts shall be transmitted to
the clerk of the trial court who shall
thereupon arrange the same in the order in
which the witnesses testified at the trial, and
shall cause the pages to be numbered
consecutively. (12a)
Q: Can the parties settle the case amicably despite the fact that
there is already an appeal?
A: Yes, compromise is welcome anytime.
Q: Now who will approve the compromise?
A: Technically, the court has no jurisdiction. But for as long as the
records are still there, the trial court can approve the compromise.
Now, suppose the records are already transmitted to the CA? Then
you better submit your compromise agreement before the CA.
Sec. 12. Transmittal. The clerk of the trial

court shall transmit to the appellate court the
original record or the approved record on
appeal within thirty (30) days from the
perfection of the appeal, together with the
proof of payment of the appellate court
docket and other lawful fees, a certified true
copy of the minutes of the proceedings, the
order of approval, the certificate of
correctness, the original documentary
evidence referred to therein, and the original
and three (3) copies of the transcripts. Copies
of the transcripts and certified true copies of
the documentary evidence shall remain in the
lower court for the examination of the
parties. (11a)
Sections 10, 11, and 12 are purely administrative provisions.

Sec. 10. Duty of clerk of court of the lower
court upon perfection of appeal. Within thirty
(30) days after perfection of all the appeals in
accordance with the preceding section, it
shall be the duty of the clerk of court of the
lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
Sec. 13. Dismissal of appeal. Prior to the

transmittal of the original record or the
record on appeal to the appellate court, the
trial court may motu proprio or on motion
dismiss the appeal for having been taken out
of time. (14a)
(b) To verify the completeness of the records

that will be transmitted to the appellate
court;
(c) If found to be incomplete, to take such
measures as may be required to complete the
records, availing of the authority that he or
the court may exercise for this purpose; and
Q: May the RTC dismiss the appeal?

A: Yes, for as long as the record of the case or the record of appeal
has not yet been transmitted to the appellate court, the court may
motu propio, even without any motion, or on motion of the
appellee, the trial court is empowered to dismiss the appeal on the
ground of having been taken out of time.
(d) To transmit the records to the appellate

court.
If the efforts to complete the records fail, he
shall indicate in his letter of transmittal the
exhibits or transcripts not included in the
records being transmitted to the appellate
court, the reasons for their non-transmittal,
and the steps taken or that could be taken to
have them available.
Q: Can the trial court dismiss the appeal on the ground that the
appeal is dilatory?
A: NO. The trial court has no power to say that the appeal is
dilatory. Such question can only be passed upon by the appellate
court. Otherwise, trial courts can easily forestall review or reversal
of their decisions no matter how erroneous such decisions may be.
(Dasalla vs. Caluag, L-18765. July 31, 1963; GSIS vs. Cloribel, L22236, June 22, 1965; Republic vs. Rodriguez, L-26056, May 29,
1969) The only ground for the trial court to dismiss appeal is for
having been taken out of time. Thats all.
The clerk of court shall furnish the parties

with copies of his letter of transmittal of the
records to the appellate court. (10a)
Sec. 11. Transcript. Upon the perfection of the
appeal, the clerk shall immediately direct the
stenographers concerned to attach to the
record of the case five (5) copies of the
transcripts of the testimonial evidence
referred to in the record on appeal. The
Dont confuse that with Rule 39.

Q: Can the prevailing party file a motion for execution pending
appeal, on the ground that the appeal is dilatory? Any appeal
which is frivolous is intended as dilatory.
413

A: Well, its not the appeal that is being questioned but whether
there is a ground for execution pending appeal. Ang jurisprudence
niyan magulo eh: NO, the trial court cannot do that. Only the CA
can determine whether the appeal is dilatory. But there are cases
where the SC said YES because that can be a good reason.
Pero dito (Rule 41), iba ang tanong. The court is not being asked to
grant an execution pending appeal but being asked to dismiss an
appeal. Ah, ito talaga hindi pwede. NEVER, because of Section 13,
Rule 41 there is only one ground, filed out of time. Yaaan!
414

Rule 42
petition for review, you file your petition directly with the CA. Do
not file it with the RTC.
Not only that. Of course, you have to pay the docket and lawful
fees plus P500 for costs. And you must furnish the RTC and the
adverse party with a copy of the petition. That is a new
requirement.
PETITION FOR REVIEW

FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
Q: What are the modes of appeal from RTC to the CA?
Q: Where to file docket fee?

A: Its either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW
(Rule 42).
A: CA pa rin.
Rule 41 refers to an ordinary appeal from the RTC to the CA yung

notice of appeal. Here, the RTC rendered a decision pursuant to its
ORIGINAL JURISDICTION.
Q: What is the period to file a petition for review ?

A: The period to file a petition for review is 15 days from receipt of
the RTC judgment or from the order denying the motion for
reconsideration.
Eto namang Rule 42 (Petition for review) is the mode of appeal

from the RTC to the CA in cases decided by the RTC pursuant to its
APPELLATE JURISDICTION. So, the case here actually originated in
the MTC, then it was appealed to the RTC under Rule 40. And now,
from the RTC, you want to go to the CA. Hence, the mode of appeal
is not (Rule 41) Notice of Appeal but RULE 42 Petition for Review.
Q: What is the difference in period to file between Rule 41 and

Rule 42 ?
A: In Rule 41, if your motion for reconsideration is denied, you can
still appeal within the remaining balance of the 15-day period. In
Rule 42, the 15-day period starts all over again because the law
says or of the denial. So, another fresh 15 days. This because it is
more difficult to prepare a petition for review. This is more timeconsuming than a simple notice of appeal. Well go to examples:
For the first time, there is now a rule governing petitions for review
from the RTC to the CA. Prior to July 1, 1997, there was none.
Although there were guidelines then in jurisprudence, decided
cases and SC circulars.
Section 1. How appeal taken; time for filing. A
party desiring to appeal from a decision of
the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may file a
verified petition for review with the Court of
Appeals, paying at the same time to the clerk
of said court the 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. The petition shall be filed and
served within fifteen (15) days from notice of
the decision sought to be reviewed or of the
denial of petitioners motion for new trial or
reconsideration filed in due time after
judgment. Upon proper motion and the
payment of the full amount of the docket and
other lawful fees and the deposit for costs
before the expiration of the reglementary
period, the Court of Appeals may grant an
additional period of fifteen (15) days only
within which to file the petition for review.
No further extension shall be granted except
for the most compelling reason and in no
case to exceed fifteen (15) days. (n)
PROBLEM: The case was decided by the MTC, appealed to the RTC.
And then in the RTC, you lost again. You receive a copy of the
decision on March 31. On April 10, you file a motion for
reconsideration. And then on April 20, you receive the order
denying the MFR.
Q: How many days more are left for you to file your petition for
review?
A: Kung sabihin mo 6 days from April 20 or April 26, thats FALSE!
The answer is 15 days all over again. Look at the law: The petition
shall be filed and served within fifteen (15) days from notice of the
decision sought to be reviewed or of the denial of petitioners
motion for new trial or reconsideration. Meaning, you count
another 15 days from the denial. Umpisa na naman!
So the filing a motion for new trial or reconsideration in Rule 42
does not only interrupt the running of the period but it commences
to run all over again. Unlike in Rule 41, in ordinary appeal, where
the filing of the motion for reconsideration or new trial merely
interrupts the running of the period to appeal. And it commences
to run again from the time you are notified that your motion is
denied. See the difference?
Actually, if you are not serious in your study of appeal, you will not
see these distinctions. You will just assume that the principles
under Rule 41 and Rule 42 are the same.
Under Section 1, a petition for review under Rule 42 must be

VERIFIED.
Q: Under Section 1, is the 15-day period to file petition for review

extendible?
Q: Where will you file your petition for review?

A: You file it directly with the CA. Do not file it with the trial court.
A: Under Rule 41, the 15-day period to file notice of appeal is not
extendible no exceptions. But in Rule 42, the 15-day period to file
petition for review is EXTENDIBLE according to the last sentence of
Section 1, provided you pay your docket and other lawful fees, the
CA will grant additional 15 days within which to file a petition for
review.
In Rule 41, where the appeal is deemed perfected by simply filing a

notice of appeal, you file your notice of appeal with the RTC. Do
not file it with the CA. But in Rule 42, where the appeal is by
415

Q: Where will you file your motion for extension of time to file
petition for review?
A: You file your motion for extension to the CA. The CA itself will
grant the extension.
action or proceeding, he must state the

status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and
other tribunal or agency thereof within five
(5) days therefrom. (n)
Q: How many more days can the CA grant?

A: The CA may grant another 15 days and no further extension can
be granted except for the most compelling reasons. So, original
extension is 15 days, and a possible extension of 15 days = total 30
days.
Take note of Section 2. Do not implead the lower court or the judge
because nasanay na tayo na pati yung judge naging defendant or
respondent na. We only do that in Certiorari under Rule 65 in
Special Civil Actions, but not on appeal. This is the influence of
Justice Feria because he has penned many cases which has
included the judge as defendant or respondent. So, he said that in
the case of MWSS vs. CA [Aug. 25, 1986], hence we can see his
influence, siningit talaga niya iyan sa kaso na yon.
These are technical points. And how many appealed cases have
been dismissed simply because these finer provisions were not
been observed by lawyers? I would say 60% of all appeals are
dismissed. Even in Davao, majority of petitions are dismissed
because nakulangan ng piso sa docket fee, karami. I presume
throughout the country, the pattern is the same because the rules
on appeal are very technical and very strict. Thats why there are
lawyers in Manila, even in Davao, who do not want to handle
appealed cases. They only handle cases in the trial court. Pag-akyat
na, nasa CA na, petition for certiorari, pasa na sa iba.
Now, as to the form [last paragraph], there has to be a Certification

of Non-Forum Shopping, failure to comply with such would mean
the dismissal of the case.
But there are also who have mastered the rules on appeal. For the
purpose of specialization, trial phase and appeal phase. For
purposes of the bar, you have to know all the fields in laws. Once
you pass the bar, diyan na kayo mag-isip kung ano ang pipiliin
ninyocivil, criminal, labor, etc. But for purposes of the bar, you
cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law.
Pwede ba yan? You cannot do that. Kaya nga sabi nila, the people
who know more about the law are those who have just taken the
bar.
ORTIZ vs. COURT OF APPEALS 299 SCRA 708 [1998]

FACTS: The certification was not signed by the Ortizes but by their
lawyer who has personal knowledge of the fact and contended that
it should be accepted as substantial compliance with the rules.
HELD: The certification was not proper. Strict observance of the
rule is required. In this case, no explanation was given.
Sec. 2. Form and contents. The petition shall

be filed in seven (7) legible copies, with the
original copy intended for the court being
indicated as such by the petitioner, and shall
(a) state the full names of the parties to the
case, without impleading the lower courts or
judges thereof either as petitioners or
respondents; (b) indicate the specific material
dates showing that it was filed on time; (c)
set forth concisely a statement of the matters
involved, the issues raised, the specification
of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and
the reasons or arguments relied upon for the
allowance of the appeal; (d) be accompanied
by clearly legible duplicate originals or true
copies of the judgments or final orders of
both lower courts, certified correct by the
clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and
of the pleadings and other material portions
of the record as would support the
allegations of the petition.
Regrettably, We find that substantial compliance will not suffice in

a matter involving strict compliance. The attestation contained in
the certification on non-forum shopping requires personal
knowledge by the party who executed the same. To merit the
Courts consideration, Ortizes here must show reasonable cause for
failure to personally sign the certification. The Ortizes must
convince the court that the outright dismissal of the petition would
defeat the administration of justice. However, the Ortizes did not
give any explanation to warrant their exemption from the strict
application of the rule. Utter disregard of the rules cannot justly be
rationalized by harking on the policy of liberal construction.
Q: Under paragraph [c], what issues can you raise in the petition
for review?
A: Errors of fact, errors of law, or both mixed errors of fact or law.
Somebody asked this QUESTION: hindi ba kapag error of law dapat
sa SC yan? Hindi na dadaan sa CA? How do you reconcile this with
the Constitution? Actually, when the law says decisions of the RTC
appealable directly to the SC, it was decided pursuant to its original
jurisdiction. But if it is decided pursuant to its appellate jurisdiction,
the appeal should be to the CA even on pure questions of law
without prejudice of going to the SC later on.
The petitioner shall also submit together with

the petition a certification under oath that he
has not theretofore commenced any other
action involving the same issues in the
Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
Sec. 3. Effect of failure to comply with

requirements. The failure of the petitioner to
comply with any of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the
416

contents of and the documents which should

accompany the petition shall be sufficient
ground for the dismissal thereof.
A: The parties will be required to submit their respective

memoranda.
Take note that the RTC is also given the power to issue orders for
the protection of the parties the same as in Section 8, paragraph
[b].
Section 3. If you fail to comply with the requirements, tapos ang

petition mo, dismiss!
Sec. 4. Action on the petition. The Court of
Appeals may require the respondent to file a
comment on the petition, not a motion to
dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be
patently
without
merit,
prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to
require consideration. (n)
Sec. 7. Elevation of record. Whenever the

Court of Appeals deems it necessary, it may
order the clerk of court of the Regional Trial
Court to elevate the original record of the
case including the oral and documentary
evidence within fifteen (15) days from notice.
(n)
Q: Now, when is an appeal by petition for review deemed
perfected?
Sec. 5. Contents of comment. The comment of

the respondent shall be filed in seven (7)
legible copies, accompanied by certified true
copies of such material portions of the record
referred to therein together with other
supporting papers and shall (a) state whether
or not he accepts the statement of matters
involved in the petition; (b) point out such
insufficiencies or inaccuracies as he believes
exist in petitioners statement of matters
involved but without repetition; and (c) state
the reasons why the petition should not be
given due course. A copy thereof shall be
served on the petitioner. (n)
A: Section 8 [a]. Similar to Rule 41. The same principle:

Sec. 8. Perfection of appeal; effect thereof. (a)
Upon the timely filing of a petition for review
and the payment of the corresponding docket
and other lawful fees, the appeal is deemed
perfected as to the petitioner.
The Regional Trial Court loses jurisdiction
over the case upon the perfection of the
appeals filed in due time and the expiration
of the time to appeal of the other parties.
However, before the Court of Appeals gives
due course to the petition, the Regional Trial
Court may issue orders for the protection and
pending appeal in accordance with section 2
appeal. (9a, R41)
Sec. 6. Due course. If upon the filing of the

comment or such other pleadings as the
court may allow or require, or after the
expiration of the period for the filing thereof
without such comment or pleading having
been submitted, the Court of Appeals finds
prima facie that the lower court has
committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give
due course to the petition. (n)
(b) Except in civil cases decided under the

Rule on Summary Procedure, the appeal shall
stay the judgment or final order unless the
Court of Appeals, the law, or these Rules shall
provide otherwise. (n)
Q: When you file a petition for review from the RTC to the CA, is
the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may not
give due course to the petition unlike in ordinary appeal. Yan ang
kaibahan ng ordinary appeal and petition for review.
Q: Does the RTC have the power to act despite the fact that the
petition for review is already before the CA? Suppose I lost in the
MTC, and I also lost on appeal in the RTC. I file a petition for
review. What happens to the decision? Can the decision be
enforced?
In ordinary appeal under Rule 41, when you file notice of appeal
and you pay your docket fee, your appeal is automatically
entertained. At least it will be heard by the CA. But in Rule 42, it is
not the same. When you go there, whether your petition for review
will be given due course or not even if you have paid the docket
fee. Normally, the CA will required you to comment and then
chances are after another month and after reading your petition
and your comment, the CA will refuse to give due course to your
petition, Your petition is hereby dismissed! So, you must convince
the CA na may merit baah!
A: NO, it cannot be enforced yet because it is not yet final. We still

have to wait for the appeal to be dismissed or to be entertained
and denied later. Under paragraph [b], the appeal shall stay the
judgment or final order UNLESS the CA, the law or these rules
should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil
cases provided in the Rules on Summary Procedure, any part
thereafter appealed to the CA will not stop the implementation of
the RTC decision.
Q: What happens when the petition for review is given due course?
417

Under Section 21 of the Summary Rules, when a case is started in

the MTC under the Summary Procedure, and appealed to the RTC
and decided by the RTC, the decision becomes immediately
executory. Even if we file a petition for review, it is executory. The
only way to stop the RTC from enforcing that judgment is to get a
TRO or a writ of preliminary injunction from the CA. That is the
rule.
I have a similar case now on that issue. The case originated from
the MTC for ejectment. The defendant lost, akyat ngayon sa RTC,
affirmed. And then akyat na naman ang defendant sa CA on
petition for review (although right now, it has not yet been given
due course) with a prayer for TRO. But the CA said that there is no
compelling reason to issue one. In the meantime, I filed a motion
for execution. The defendant opposed on the ground that a
judgment cannot be executed daw because of a pending petition
for review. But this is under the Summary Rules ejectment. This is
an exception, so that will not apply.
Sec. 9. Submission for decision. If the petition
is given due course, the Court of Appeals may
set the case for oral argument or require the
parties to submit memoranda within a period
of fifteen (15) days from notice. The case
shall be deemed submitted for decision upon
the filing of the last pleading or
memorandum required by these Rules or by
the court itself. (n)
418

Rule 43
because all decisions of all quasi-judicial bodies are appealed to the

CA.
APPEALS FROM THE COURT OF TAX APPEALS AND

QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Four years later the Constitution took effect. In July 1987 during
the term of Cory Aquino, she promulgated E.O. No. 226, the
so-called Omnibus Investment Code of 1987 where provisions from
the old code were merely lifted. And among those included is the
provision on appeals from the BOI where you go directly to the SC.
Let us now go to Rule 43 which governs Appeals from the Court of

Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.
Take note that under Section 9 of BP 129, the CA has the exclusive
appellate jurisdiction to review decisions of all RTC and QuasiJudicial Bodies, and Rule 43 is the governing rule on appeals from
quasi-judicial bodies.
The position of Lepanto is, the new law (E.O. No. 226) has modified
BP 129 because the old law was modified by BP 129. And since this
is a new law, binalik na naman ang appeal sa SC. So na modify ang
BP 129.
So, before this, appeal to the CA of Tax cases is supposed to be to

the SC. Now it is reverted to the CA, and also quasi-judicial
agencies. What was the prior law? It is Revised Administrative
Circular No. 1-95, which was promulgated on January 1, 1995. Now
it is Rule 43 the circular was actually quoted here verbatim. So,
you can no longer go to the SC, even on pure questions of law, ha!
Decisions of quasi-judicial agencies must pass first to the CA even
on pure questions of law.
HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O.
No. 226, the New Constitution has taken effect. And under the
1987 Constitution, you cannot increase the appellate jurisdiction of
the SC without its consent and concurrence. In effect, the new law
(E.O. No. 226) increased the work of the SC without its knowledge
and consent therefore the SC did not agree. The SC rejected the
provision that decisions of the BOI are appealable directly to the
SC.
Now what are these quasi-judicial bodies? They are enumerated in

Section 1:
In the case of FABIAN vs. DESIERTO [December 16, 1998], a

provision under RA 6670, which provides that decisions of the
Office of the Ombudsman in administrative disciplinary cases, was
declared unconstitutional because the appellate jurisdiction of the
SC was increased without its advice and consent.
Section 1. Scope. This Rule shall apply to

appeals from judgments or final orders of the
Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among
these agencies are the Civil Service
Commission, Central Board of Assessment
Appeals,
Securities
and
Exchange
Commission, Office of the President, Land
Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau
of Patents, Trademarks and Technology
Transfer,
National
Electrification
Administration, Energy Regulatory Board,
National Telecommunications Commission,
Department of Agrarian Reform under
Republic Act No. 6657, Government Service
Insurance System, Employees Compensation
Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction
Industry
Arbitration
Commission, and voluntary arbitrators
authorized by law. (n)
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before
Revised Administrative Code No. 1-95. As I have told you before,
rulings of different constitutional commissions, CSC, COA,
COMELEC should be direct to the SC. That is why the case of
MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned
because the new procedure is that decisions of the CSC are now
appealable to the CA.
Sec. 2. Cases not covered. This Rule shall not apply to
judgments or final orders issued under the Labor Code
of the Philippines. (n)
Section 2 refers to decisions of NLRC and the Secretary of Labor.
Their decisions can be brought directly to the SC by way of petition
for Certiorari under Rule 65, not by appeal (Rule 43).
Sec. 3. Where to appeal. An appeal under this Rule may
be taken to the Court of Appeals within the period and
in the manner herein provided, whether the appeal
involves questions of fact, of law, or mixed questions of
fact and law. (n)
So, very specific! The latest addition there are decisions of

voluntary arbitrators. Prior to that, it can be brought by certiorari
to the SC, but because of a decided case it is now be brought to the
CA.
Sec. 4. Period of appeal. The appeal shall be taken

within fifteen (15) days from notice of the award,
judgment, final order or resolution, or from the date of
its last publication, if publication is required by law for
its effectivity, or of the denial of petitioners motion for
new trial or reconsideration duly filed in accordance
with the governing law of the court or agency a quo.
Only one (1) motion for reconsideration shall be
allowed. Upon proper motion and the payment of the
full amount of the docket fee before the expiration of
the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only
within which to file the petition for review. No further
One case under Rule 43 which I want to discuss with you is the case
of
LEPANTO CERAMICS vs. CA 237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of Investments (BOI).
Now, as provided in the original Omnibus Investment Code of 1981
during the Marcos era, decisions of the BOI are appealable directly
to the SC. But years later it was nullified by the Judiciary Law
419

extension shall be granted except for the most

compelling reason and in no case to exceed fifteen (15)
days. (n)
should be denied or dismissed. A copy thereof shall be

served on the petitioner, and proof of such service shall
be filed with the Court of Appeals. (9a)
Sec. 5. How appeal taken. Appeal shall be taken by filing

a verified petition for review in seven (7) legible copies
with the Court of Appeals, with proof of service of a
copy thereof on the adverse party and on the court or
agency a quo. The original copy of the petition intended
for the Court of Appeals shall be indicated as such by
the petitioner.
Sec. 10. Due course. If upon the filing of the comment or

such other pleadings or documents as may be required
or allowed by the Court of Appeals or upon the
expiration of the period for the filing thereof, and on
the basis of the petition or the records the Court of
Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that
would warrant reversal or modification of the award,
judgment, final order or resolution sought to be
reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same. The findings of fact
of the court or agency concerned, when supported by
substantial evidence, shall be binding on the Court of
Appeals. (n)
Upon the filing of the petition, the petitioner shall pay

to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum of
P500.00 for costs. Exemption from payment of
docketing and other lawful fees and the deposit for
costs may be granted by the Court of Appeals upon a
verified motion setting forth valid grounds therefor. If
the Court of Appeals denies the motion, the petitioner
shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of
the denial. (n)
Sec. 11. Transmittal of record. Within fifteen (15) days

from notice that the petition has been given due
course, the Court of Appeals may require the court or
agency concerned to transmit the original or a legible
certified true copy of the entire record of the
proceeding under review. The record to be transmitted
may be abridged by agreement of all parties to the
proceeding. The Court of Appeals may require or permit
subsequent correction of or addition to the record. (8a)
Sec. 6. Contents of the petition. The petition for review

shall (a) state the full names of the parties to the case,
without impleading the court or agencies either as
petitioners or respondents; (b) contain a concise
statement of the facts and issues involved and the
grounds relied upon for the review; (c) be accompanied
by a clearly legible duplicate original or a certified true
copy of the award, judgment, final order or resolution
appealed from, together with certified true copies of
such material portions of the record referred to therein
and other supporting papers; and (d) contain a sworn
certification against forum shopping as provided in the
last paragraph of section 2, Rule 42. The petition shall
state the specific material dates showing that it was
filed within the period fixed herein. (2a)
Sec. 12. Effect of appeal. The appeal shall not stay the
award, judgment, final order or resolution sought to be
reviewed unless the Court of Appeals shall direct
otherwise upon such terms as it may deem just. (10a)
Sec. 13. Submission for decision. If the petition is given
due course, the Court of Appeals may set the case for
oral argument or require the parties to submit
memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum
required by these Rules or by the Court of Appeals. (n)
Sec. 7. Effect of failure to comply with requirements. The

failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs,
proof of service of the petition, and the contents of and
the documents which should accompany the petition
shall be sufficient ground for the dismissal thereof. (n)
Sec. 8. Action on the petition. The Court of Appeals may
require the respondent to file a comment on the
petition, not a motion to dismiss, within ten (10) days
from notice, or dismiss the petition if it finds the same
to be patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too
unsubstantial to require consideration. (6a)
Sec. 9. Contents of comment. The comment shall be filed
within ten (10) days from notice in seven (7) legible
copies and accompanied by clearly legible certified true
copies of such material portions of the record referred
to therein together with other supporting papers. The
comment shall (a) point out insufficiencies or
inaccuracies in petitioners statement of facts and
issues; and (b) state the reasons why the petition
420

PROCEDURE IN THE COURT OF APPEALS
lawful fees, the clerk of court of the Court of

Appeals shall docket the case and notify the
parties thereof.
Rule 44
ORDINARY APPEALED CASES
Within ten (10) days from receipt of said

notice, the appellant, in appeals by record on
appeal, shall file with the clerk of court seven
(7) clearly legible copies of the approved
record on appeal, together with the proof of
service of two (2) copies thereof upon the
appellee.
We will now go to Rule 44 which is Procedure in the Court of

Appeals in Ordinary Appealed Cases. This is just the continuation of
Rule 41. When a case is appealed to the CA under Rule 41, this is
ordinary appeal (decisions of RTC pursuant to its original
jurisdiction), so what will happen here?
Take note that the procedure in the CA is not only found in the
Rules of Court. The Internal Rules of the CA is found in its so called
Revised Internal Rules of the Court of Appeals (RIRCA).
Any unauthorized alteration, omission or

addition in the approved record on appeal
shall be a ground for dismissal of the appeal.
(n)
So it is best that you go over it. For purposes of the BAR, hindi na
kailangan yan! There are some provisions kasi na wala sa Rules of
Court. I have a copy of that eh, leather-bound! It just so happen
that we have an alumna who is the head of the Records Division of
the CA.
Sec. 5. Completion of record. Where the

record of the docketed case is incomplete,
the clerk of court of the Court of Appeals
shall so inform said court and recommend to
it measures necessary to complete the
record. It shall be the duty of said court to
take appropriate action towards the
completion of the record within the shortest
possible time. (n)
Anyway, take note that under the present rules when the RTC clerk
transmits the records to the CA, nandoon na ang docket fee. Now,
once original record is there, next is you will receive a notice from
the clerk of court that all the records are there, all the
documentary evidence. And you are now given 45 days to file an
appellants brief under Section 7 which has to be answered by the
appellee under Section 8. And the appellant is given the option to
file an appellants reply brief under Section 9. As to the contents of
the appellants brief and appellees brief, you have Sections 13 and
14.
Sec. 6. Dispensing with complete record.

Where the completion of the record could
not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult causes, the
court, on its own motion or on motion of any
of the parties, may declare that the record
and its accompanying transcripts and exhibits
so far available are sufficient to decide the
issues raised in the appeal, and shall issue an
order explaining the reasons for such
declaration. (n)
Section 1. Title of cases. In all cases appealed

to the Court of Appeals under Rule 41, the
title of the case shall remain as it was in the
court of origin, but the party appealing the
case shall be further referred to as the
appellant and the adverse party as the
appellee. (1a, R46)
Sec. 7. Appellants brief. It shall be the duty of

the appellant to file with the court, within
forty-five (45) days from receipt of the notice
of the clerk that all the evidence, oral and
documentary, are attached to the record,
seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
appellee. (10a, R46)
Sec. 2. Counsel and guardians. The counsel

and guardians ad litem of the parties in the
court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall
be served immediately on the adverse party
and filed with the court. (2a, R46)
Sec. 3. Order of transmittal of record. If the
original record or the record on appeal is not
transmitted to the Court of Appeals within
thirty (30) days after the perfection of the
appeal, either party may file a motion with
the trial court, with notice to the other, for
the transmittal of such record or record on
appeal. (3a, R46)
Sec. 8. Appellees brief. Within forty-five (45)

days from receipt of the appellants brief, the
appellee shall file with the court seven (7)
copies
of
his
legibly
typewritten,
mimeographed or printed brief, with proof of
appellant. (11a, R46)
Sec. 9. Appellants reply brief. Within twenty
(20) days from receipt of the appellees brief,
the appellant may file a reply brief answering
points in the appellees brief not covered in
his main brief. (12, R46)
Sec. 4. Docketing of case. Upon receiving the

original record or the record on appeal and
the accompanying documents and exhibits
transmitted by the lower court, as well as the
proof of payment of the docket and other
421

Sec. 10. Time for filing memoranda in special

cases. In certiorari, prohibition, mandamus,
quo warranto and habeas corpus cases, the
parties shall file, in lieu of briefs, their
respective memoranda within a nonextendible period of thirty (30) days from
receipt of the notice issued by the clerk that
all the evidence, oral and documentary, is
already attached to the record. (13a, R46)
(e) A clear and concise statement of the

issues of fact or law to be submitted to the
court for its judgment;
(f) Under the heading "Argument," the
appellants arguments on each assignment of
error with page references to the record. The
authorities relied upon shall be cited by the
page of the report at which the case begins
and the page of the report on which the
citation is found;
The failure of the appellant to file his

memorandum within the period therefor
may be a ground for dismissal of the appeal.
(n)
(g) Under the heading "Relief," a specification

of the order or judgment which the appellant
seeks; and
Sec. 11. Several appellants or appellees or

several counsel for each party. Where there
are several appellants or appellees, each
counsel representing one or more but not all
of them shall be served with only one copy of
the briefs. When several counsel represent
one appellant or appellee, copies of the brief
may be served upon any of them. (14a, R46)
(h) In cases not brought up by record on

appeal, the appellants brief shall contain, as
an appendix, a copy of the judgment or final
order appealed from. (16a, R46)
Sec. 14. Contents of appellees brief. The
appellees brief shall contain, in the order
herein indicated, the following:
Sec. 12. Extension of time for filing briefs.

Extension of time for the filing of briefs will
not be allowed, except for good and
sufficient cause, and only if the motion for
extension is filed before the expiration of the
time sought to be extended. (15, R46)
(a) A subject index of the matter in the brief

with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
Sec. 13. Contents of appellants brief. The

appellants brief shall contain, in the order
herein indicated, the following:
(b) Under the heading "Statement of Facts,"

the appellee shall state that he accepts the
statement of facts in the appellants brief, or
under the heading "Counter-Statement of
Facts," he shall point out such insufficiencies
or inaccuracies as he believes exist in the
appellants statement of facts with
references to the pages of the record in
support thereof, but without repetition of
matters in the appellants statement of facts;
and
(a) A subject index of the matter in the brief

with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading "Argument," the

appellee shall set forth his arguments in the
case on each assignment of error with page
references to the record. The authorities
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found.
(17a, R46)
(c) Under the heading "Statement of the

Case," a clear and concise statement of the
nature of the action, a summary of the
proceedings, the appealed rulings and orders
of the court, the nature of the judgment and
any other matters necessary to an
understanding of the nature of the
controversy, with page references to the
record;
This is like a thesis or writing a book Appellants and appellees

brief.
Q: What is a brief? What is its purpose?
(d) Under the heading "Statement of Facts," a

clear and concise statement in a narrative
form of the facts admitted by both parties
and of those in controversy, together with
the substance of the proof relating thereto in
sufficient detail to make it clearly intelligible,
with page references to the record;
A: The word BRIEF is derived from the Latin word BREVIS [AND
BRUTTHEAD] and the French word BREFIE, and literally means a
short or condensed statement. Its purpose is to present to the court
in concise form the points and questions in controversy, and by fair
argument on the facts and law of the case, to assist the court to
arrive at a just and fair conclusion. It should be prepared as to
422

minimize the labor of the court in the examination of the record

upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil. 67;
Casilan vs. Chavez, L-17334, Feb. 28, 1962)
appellants brief, and today is November 4. So, the period

commences to run on November 4. So very liberal no?
Take note of Section 15 what questions may an appellant raise on
appeal:
So you summarize the case, facts, issues, arguments, discussions,

citations of laws. So its like a debate no?
Sec. 15. Questions that may be raised on

appeal. Whether or not the appellant has
filed a motion for new trial in the court
below, he may include in his assignment of
errors any question of law or fact that has
been raised in the court below and which is
within the issues framed by the parties. (18,
R46)
Alright. The best brief writers I noticed are those in the Solicitor
Generals office. Just imagine, the Solicitor General defends all the
cases of the government. When a criminal case is appealed by the
accused to the CA or CA, automatically the Solicitor General takes
over. In the lower court, it is the fiscals no?
So, the Solicitor General defends the case he had never tried. So
they just based it on records. They condensed decisions kahit na
gaano ang kapal, reducing it to 15 pages or less. Its really an ability
to do it. The shorter the better. People there in the Solicitor
Generals office are really good writers and researchers because
that is the law office of the Republic of the Philippines. Lahat dyan
magagaling, isa lang ang hindi marunong. SINO? Ang Solicitor
General ninyo! He is only a political appointee. (F. Chavez? Or
Galvez?)
So the appellant cannot raise before the CA on appeal any question

of law or fact that has not been raised in the lower court and not
within the issues framed by the parties. He cannot, for the first time
on appeal, say something which was not raised in the trial court.
Another thing is, he cannot change his theory on appeal, either
theory on the cause of action or theory on the defense.
Now, sometimes it is easy to detect whether there is change of
theory. The only possible exception maybe is when you raise for
the first time on appeal something which you never raised as in
lack of jurisdiction unless estoppel will set in as in the case of TIJAM
vs. SIBONGHANOY. Illustrating this point is the case of
Q: Is the 45-day period to file brief extendible?

A: YES, that is section 12. The worst violator here is the Solicitor
General extension 30 days, 2nd extension 30 days! Ganyan sila!
Sometimes it takes them 18 months to prepare a brief. Sabagay,
marami din kasi silang trabaho no?
RIVERA vs. CA 176 SCRA 169 [1989]
Q: When do you file the motion for extension of time to file brief?
FACTS: The spouses Martinez sold their house and lot to Rivera.
Later, they filed a complaint against Rivera declaring the sale as null
and void on the ground that the sale is a mortgage. The court
dismissed the complaint. So the ruling of the trial court was that
the sale was valid. But on the CA, Martinez spouses prayed that
they maybe allowed to redeem the property.
A: The motion for extension of time is filed BEFORE the expiration of

the time sought to be extended. (Section 12) BUT sometimes the SC
can be liberal about extension. One case is
MOSKOWSKY vs. CA 230 SCRA 657
The CA reversed the trial court and allowed Martinez spouses to

redeem the property. Now, Rivera appealed to the CA, contending
that Martinez change the theory of their case because in the
original complaint the latter prayed for the annulment of the sale,
and in the CA they prayed that they be allowed to redeem the
property.
FACTS: The CA here granted the appellant a period of 90 days

counted from August 3, 1991. So after the 45 days plus 90 days pa
from August 3, 1991. Said 90-day period ended on November 1,
1991. On November 4, 1991, or 3 days after the extended period,
instead of filing a brief, appellant filed another motion for a 20-day
extension.
ISSUE: Was there a change of theory of the Martinez spouses?

ISSUE #1: Was the motion for extension filed on time based on
Section 12?
HELD: There was NO CHANGE of theory. There was no surprise

against Rivera or to the CA. The real purpose of the Martinez
spouses in asking for the nullity of the contract is to enable them to
recover the property from Rivera.
HELD: YES. Said ninety-day period would end on November 1,

1991. November 1 is a regular holiday. Then President Aquino
declared November 2, 1991 as a special holiday. The next day,
November 3, 1991 turned out to be a Sunday. The next business
day was, therefore, November 4, 1991 - a Monday.
Prescinding from those allegations and from the prayer all clearly
set out in the complaint, it is fair to conclude that the real purpose
in asking for the nullity of the contract of sale is to enable the
Martinez spouses to recover or redeem the property they deeded
in favor of Rivera. It would be absurd to pray for the nullity of an
agreement and stop there. There would be a vacuum and the law,
like nature, abhors a vacuum.
The abovementioned motion was, therefore, filed on time, i.e.,

the motion for the extension sought was filed before the expiration
of the time sought to be extended.
ISSUE #2: When do you compute the 20-day extension being asked
for? Is it on November 1, the expiration of the period? Or on
November 4, the day of the filing of the motion?
In the CA, they persisted in their claim to entitlement of the right

to recover, redeem, or repurchase. This agreement can not be
construed as change of theory; it is persistence, plain and simple. It
does not leave any interstice in the entire theory of the case.
HELD: The appellant specifically manifested that they will need

another extension from today (November 4) within which to file
423

Consistency in the position of the private respondents runs

throughout the presentation of their claim.
So akala mo may change of theory, yun pala wala! Why are they
annulling? To recover their property. In other words there was no
change of theory.
Q: Is the appellee required to make assignment of errors?
A: The APPELLEE is not required to make assignment of errors,
except when his purpose is to seek affirmation of the judgment on
other grounds or reasons not stated in the decision. (Saenz vs.
Mitchell, 60 Phil. 69; Gorospe vs. Peaflorida, 101 Phil. 886; Dy vs.
Kuison, L-16654, Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it enough
for him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error
is not enough. (Oquiena vs. Canda, 87 Phiil. 120; Gorospe vs.
Peaflorida, supra; Dy vs. Kuison, supra)
GENERAL RULE: If you are the winning party, you may appeal the
decision if you think you are entitled for more. So, you must
appeal. You cannot just state of errors in the appellees brief.
EXCEPTION: You may state assignment of errors to support the
decision to support, not to change, the decision. If you want to
change the decision, you appeal (general rule).
424

Rule 46
reconsideration, if any, was filed and when

notice of the denial thereof was received.
(Cir. No. 39-98)
ORIGINAL CASES
Q: What is the difference between Rule 46 and Rule 44?
It shall be filed in seven (7) clearly legible

copies together with proof of service thereof
on the respondent with the original copy
intended for the court indicated as such by
the petitioner, and shall be accompanied by a
clearly legible duplicate original or certified
true copy of the judgment, order, resolution,
or ruling subject thereof, such material
portions of the record as are referred to
therein, and other documents relevant or
pertinent thereto. The certification shall be
accomplished by the proper clerk of court or
by his duly authorized representative, or by
the proper officer of the court, tribunal,
agency or office involved or by his duly
authorized representative. The other
requisite number of copies of the petition
shall be accompanied by clearly legible plain
copies of all documents attached to the
original.
A: Rule 44 deals with appealed cases. Rule 46 deals with original

cases. Remember that the CA is both an original and appellate
court.
Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129, Certiorari, prohibition, mandamus,
quo warranto, annulment of judgment of the RTC.
The Annulment of Judgment of the RTC, which belongs to the
exclusive original jurisdiction of the CA, is governed by Rule 47.
Now, all the rest of the sections here are almost the same: how
many copies, docket fees, certification of non-forum shopping,
etc
Section 1. Title of cases. In all cases originally
filed in the Court of Appeals, the party
instituting the action shall be called the
petitioner and the opposing party the
respondent. (1a)

the petition a sworn certification that he has
not theretofore commenced any other action
involving the same issues in the Supreme
Court, the Court of Appeals or different
divisions thereof, or any other tribunal or
agency; if there is such other action or
proceeding, he must state the status of the
same; and if he should thereafter learn that a
similar action or proceeding has been filed or
is pending before the Supreme Court, the
Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof
within five (5) days therefrom.
Rule 44 on appeal to the CA, the caption of the case is the same as
the caption in the RTC (e.g. in the RTC, RED HOT vs. LIMP BIZKIT).
You just add the word appellant and appellee. BUT in Rule 44 in
original cases, the parties are now called petitioner and
respondent.
Sec. 2. To what actions applicable. This Rule
shall apply to original actions for certiorari,
prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for
annulment of judgment shall be governed by
Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto
by Rule 66. (n)
The petitioner shall pay the corresponding

docket and other lawful fees to the clerk of
court and deposit the amount of P500.00 for
costs at the time of the filing of the petition.
Therefore, the provisions of Rules 65, 66 and 47 which apply to this

original action should be read with Rule 46.
Just read Section 3. Take note of the second paragraph which was
inserted in 1998 by SC Circular 39-98).
The failure of the petitioner to comply with

any of the foregoing requirements shall be
sufficient ground for the dismissal of the
petition. (n)
Sec. 3. Contents and filing of petition; effect of

non-compliance with requirements. The
petition shall contain the full names and
actual addresses of all the petitioners and
respondents, a concise statement of the
matters involved, the factual background of
the case, and the grounds relied upon for the
relief prayed for.
Sec. 4. Jurisdiction over person of respondent,

how acquired. The court shall acquire
jurisdiction over the person of the
respondent by the service on him of its order
or resolution indicating its initial action on
the petition or by his voluntary submission to
such jurisdiction. (n)
In actions filed under Rule 65, the petition

shall further indicate the material dates
showing when notice of the judgment or final
order or resolution subject thereof was
received, when a motion for new trial or
When you file an original action before the CA like certiorari,

normally under Section 3 you already furnish the adverse party
with a copy of your petition. Then the CA will now issue a
425

resolution, like for example, Defendant/Respondent, you are

given so many days to comment.
That is how the CA acquires jurisdiction over your person by
serving you a copy of the order indicating its initial action. So there
is no more summons because you were already furnished a copy
earlier.
Sec. 5. Action by the court. The court may
dismiss the petition outright with specific
reasons for such dismissal or require the
respondent to file a comment on the same
within ten (10) days from notice. Only
pleadings required by the court shall be
allowed. All other pleadings and papers may
be filed only with leave of court. (n)
Sec. 6. Determination of factual issues.
Whenever necessary to resolve factual issues,
the court itself may conduct hearings thereon
or delegate the reception of the evidence on
such issues to any of its members or to an
appropriate court, agency or office. (n)
Sec. 7. Effect of failure to file comment. When
no comment is filed by any of the
respondents, the case may be decided on the
basis of the record, without prejudice to any
disciplinary action which the court may take
against the disobedient party. (n)
426

Rule 47
Well of course the remedy of new trial under Rule 37 must be

availed of before the judgment or order becomes final and
executory. Also, the remedy of appeal must also be availed before
the judgment or order becomes final and executory.
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Rule 47 is an entirely new rule which governs the remedy of
annulment of judgments or final orders or resolutions. We already
met this remedy in judiciary law. The CA has original exclusive
jurisdiction to annul final judgments and resolutions of the RTC.
(Section 9, BP 129) So it is an entirely original action for annulment
of judgment of the RTC.
In petition for relief under Rule 38, although the judgment or order
is already final and executory, it must be done still within 60 days
and 6 months.
Now, that should not be confused with certiorari, prohibition and

mandamus which fall under the original concurrent jurisdiction of
the CA. Rule 47 or annulment of judgment of the RTC falls within
the exclusive original jurisdiction of the CA.
A: Section I says YES. There is annulment of judgment but only on

limited grounds.
Take note that in an appeal, the judgment appealed from is valid.

But in annulment under Rule 47, the judgment is being asked to be
declared void.
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 vs.
CA; Islamic DaWah Council of the Phil. vs. CA 178 SCRA 178). An
action for annulment can be filed by one who was not a party to
the action in which the assailed judgment was rendered. It is a
remedy in law independent of the case where the judgment sought
to be annulled is promulgated (Villanueva vs. Nite 496 SCRA 459).
Q: Suppose all the abovementioned remedies have lapsed, is

there a remedy left?
Who may file the action?
Under the prior law there was no direct rule governing that
remedy. The only guideline for annulment of judgments of the RTC
are decided cases. Now for the first time the 1997 Rules have a
definite rule on how to enforce this remedy.
Section 1. Coverage. This Rule shall govern
the annulment by the Court of Appeals of
judgments or final orders and resolutions in
civil actions of Regional Trial Courts for which
the ordinary remedies of new trial, appeal,
petition for relief or other appropriate
remedies are no longer available through no
fault of the petitioner. (n)
Sec. 2. Grounds for annulment. The

annulment may be based only on the grounds
of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of,
in a motion for new trial or petition for relief.
(n)
Nature of the action

Q: What are the grounds for annulment of judgment under
Section 2?
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 only on two grounds: extrinsic fraud,
and lack of jurisdiction or denial of due process (Alaban vs. CA 470
SCRA 697).
A: The grounds recognized by law for annulment of judgment are

the only two (2):
1)
The judgment was secured through extrinsic fraud; or

Extrinsic fraud should not be a valid ground if availed of,
or could have been availed of, in a motion for new trial
or petition for relief.
This remedy is available only where the ordinary remedies of new

trial, appeal, petition for review or appropriate remedies are no
longer available through no fault of the petitioner. Hence, if such
remedies were not availed of due to the petitioners fault, the
petition will be dismissed (Republic vs. Asset Privatization Trust GR
141241, Nov. 22, 2005; Sec. 1, Rule 47).
2)
The judgment is void for 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.
Like a petition for relief, 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
vs. Combong 473 SCRA 499). 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 vs. Obliosca 542 SCRA 406)
First Ground: EXTRINSIC FRAUD

Petition for relief under Rule 38 is a remedy against a final and
executory judgment kaya lang merong deadline 6 months and 60
days. So after these periods lapse, wala na.
Sa petition for relief, apat yon eh: Fraud, accident, mistake and
excusable negligence. In annulment of judgment, wala na yung
accident, mistake and excusable negligence. But yung EXTRINSIC
427

FRAUD natira pa. That is the only one which can be left behind
under Rule 47.
For sure, the CA restricted the concept of fraudulent acts within

too narrow limits. Fraud may assume different shapes and be
committed in as many different ways and here lies the danger of
attempting to define fraud. For man in his ingenuity and fertile
imagination will always contrive new schemes to fool the unwary.
Q: Now what is meant by extrinsic fraud ?

A: We already discussed this. Fraud, to be a ground for nullity of a
judgment, must be extrinsic that fraud done by the adverse party
which prevented a party from having a trial or from presenting his
case fully.
So fraud by your attorney-in-fact is also considered as a ground for

annulment.
Second Ground: JUDGMENT IS VOID FOR LACK OF JURISDICTION
Therefore, intrinsic fraud is not a ground for new trial. It is not a

ground for petition for relief. And it is not a ground for annulment.
Lack of jurisdiction
COSMIC LUMBER CORP. vs. CA 256 SCRA 168 [1996]
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 vs. G Holdings GR No. `141241 November
22, 2005). The petitioner must show not a mere grave abuse of
discretion but an absolute lack of jurisdiction (Republic vs.G
Holdings 475 SCRA 608). 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.
FACTS: Cosmic Lumber owns a piece of land occupied by some

squatters. Now, Cosmic Lumber executed a board resolution for a
special power of attorney authorizing an attorney-in-fact to initiate,
institute and file in any court action for the ejectment of the
squatters from its property. Then the agent by virtue of the power
of attorney, filed a case to recover a portion of this property from
its occupants before the RTC.
While the case was going on, the agent (the attorney-in- fact)
entered into a compromise agreement with the squatters. In the
compromise agreement, the attorney-in-fact sold the property or
land to the squatter for only P26,000. And the compromise
agreement was approved by the court and it became final and
executory.
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 courts exercise of jurisdiction, not the absence of jurisdiction
(Heirs of Maura So vs. Obliosca 542 SCRA 406).
Now it was several years later that the Cosmic Lumber heard about
it. The Cosmic Lumber filed an action to annul the judgment before
the CA on the ground of extrinsic fraud.
If we follow jurisprudence, there is a third ground which is implied:

LACK OF DUE PROCESS. When there is lack of due process there is
also lack of jurisdiction.
The CA: The case will be dismissed because that is not one of the
grounds for annulment of judgment because the alleged nullity of
the compromise judgment, because petitioners attorney-in-fact
was not authorized to sell the property. That does not amount to
extrinsic fraud. That was fraud by your own representative, it is not
fraud by the other party. The one who exercised fraud was your
own attorney-in-fact, not the squatter. So kaya nga that is not a
ground. The CA dismissed the action. So Cosmic Lumber went to
the SC.
Q: How do you attack a judgment which is void?

A: It depends:
a)
when the judgment is null and void on its very face, the
judgment may be attacked:
1)
2)
HELD: The petition to annul the decision of the trial court in civil
case before the CA was proper. Emanating as it did from a void
compromise agreement, the trial court had no jurisdiction to
render a judgment based thereon. So there is another ground
lack of jurisdiction.
b)
The highly reprehensible conduct of attorney-in-fact in the civil

case constituted an extrinsic or collateral fraud by reason of which
the judgment rendered thereon should have been struck down.
Not all the legal semantics in the world can becloud the
unassailable fact that petitioner was deceived and betrayed by its
attorney-in-fact. The latter deliberately concealed from petitioner,
her principal, that a compromise agreement had been forged with
the end result that a portion of petitioners property was sold
literally for a song, for P26,000. Thus completely kept unaware of
its agents artifice, petitioner was not accorded even a fighting
chance to repudiate the settlement so much so that the judgment
based thereon became final and executory.
DIRECTLY; or
COLLATERALLY;
when the nullity is not apparent on the face of the

judgment, the judgment can be attacked only be
DIRECTLY attacked.
Q: What is a COLLATERAL ATTACK?

A: Meaning, there is no need for me to file a case but I can invoke
its nullity anytime because a judgment which is void on its very face
can be attacked at anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a
judgment. I will oppose the execution on the ground that the
judgment is void. That is collateral attack. Im just saying that the
judgment cannot be enforced because it is null and void. But I
never filed a direct action to declare its nullity. That can be done if
the judgment is void on its very face.
Q: What is a DIRECT ATTACK?
428

A: By direct attack means you must file an action to declare its

nullity. So there must be a case for its annulment.
ISSUE #2: Suppose the judgment had already been fully executed
and implemented, can you still file a case for annulment of
judgment?
Again, when the judgment is null and void on its face, (1) you may
file a direct action to annul it under Rule 47. Or, (2) it can also be
attacked collaterally, a direct attack is not necessary. A collateral
attack will suffice.
HELD: YES. We will also annul the execution. If there is no

execution yet, the proper remedy normally is you file an action for
annulment and ask for the issuance of a writ of preliminary
injunction so that it will not be enforced. Pero kung na-enforced na
pwede pa man din ba.
EXAMPLE: RTC decided a forcible entry. By simply reading the

decision, obviously the RTC has no jurisdiction. Therefore, I can
attack it directly by filing a case for its annulment under Rule 47.
OR, I will not file a case under Rule 47 but I will attack it collaterally.
Meaning, bayaan ko lang. I will raise that issue during execution. If
you move for execution, I can oppose, You cannot execute
because the RTC has no jurisdiction over the case. Therefore the
judgment is void. So it is not necessary to file a case to declare the
decision as null and void. That is collateral attack.
SUMMARY: Possible remedies of defendant declared in DEFAULT:

1)
2)
3)
But if the judgment is not void on its face but the nullity is intrinsic
or nakatago not obvious ba the rule is, you must file a direct
action for its annulment which must be done before the action is
barred by laches or estoppel. So it is necessary to file a case for
annulment of judgment under Rule 47.
4)
5)
6)
Well of course, certiorari under Rule 65 is also a ground for

attacking a judgement but the trouble is you are limited to 3
grounds: Lack of jurisdiction, excess of jurisdiction and grave abuse
of discretion. Walang extrinsic fraud. That is governed by Rule 65
and not by Rule 47.
Rule 9, Section 3 [b] Motion to lift Order of Default,

there is still no judgment; ground: FAME;
Rule 37 Motion for new trial, judgment not yet final;
Ground: FAME;
Rule 38 Petition for relief within 60 days and 6 months,
judgment is already final; ground: FAME;
Rule 41 Appeal within 15 days; ground: Default
judgment is contrary to law or evidence;
Rule 47 Annulment of judgment; Ground: Extrinsic
Fraud;
Rule 65 Certiorari; ground: Lack or excess of
jurisdiction or grave abuse of discretion
Q: What is the period to file an action for annulment on the ground

of extrinsic fraud?
A: Section 3:
And under Rule 65, you can avail of certiorari only within 60 days.
But if you want annulment, it could be longer under Rule 47. That is
under section 3. That could be a big difference.
Sec. 3. Period for filing action. If based on

extrinsic fraud, the action must be filed
within four (4) years from its discovery; and if
based on lack of jurisdiction, before it is
barred by laches or estoppel. (n)
Moreover, what do you attack in certiorari? Normally, interlocutory

orders eh. But a final judgment can be attacked by annulment
under Rule 47.
This is based on decided cases. If your ground is extrinsic fraud, the

action is filed within four (4) years from its discovery. Now, if it is
based on lack of jurisdiction, before it is barred by laches or
estoppel. That is very elastic laches or estoppel.
Now, those remedies were summarized in the case of

BAYOG vs. NATINO 258 SCRA 378 [1996]
Although if you look at the strict law based on Article 1144 of the
New Civil Code, the prescriptive period really is 10 years for any
action on judgment. That is the strict law but it could be barred
earlier by laches or estoppel.
HELD: It is a settled rule that a final and executory judgment may

be set aside in three (3) ways. To wit:
1)
2)
3)
By petition for relief from judgment under Rule 38;

When the judgment is void for want of jurisdiction,
by direct attack, by certiorari, annulment of
judgment or by collateral attack; and
When the judgment was obtained by fraud and
Rule 38 cannot be applied anymore.
Now as to the contents of the petition, we have Section 4:

Sec. 4. Filing and contents of petition. The
action shall be commenced by filing a verified
petition alleging therein with particularity the
facts and the law relied upon for annulment,
as well as those supporting the petitioners
good and substantial cause of action or
defense, as the case may be.
So those are the summary of the remedies.

ISLAMIC DAWAH COUNCIL vs. CA 178 SCRA 178
ISSUE #1: Can a person, who is not a party to the judgment, file an
action for annulment of judgment?
The petition shall be filed in seven (7) clearly

legible copies, together with sufficient copies
corresponding to the number of respondents.
A certified true copy of the judgment or final
order or resolution shall be attached to the
original copy of the petition intended for the
court and indicated as such by the petitioner.
HELD: A person who is not a part of the judgment may sue for its
annulment PROVIDED that he can prove [1] that the judgment was
obtained through fraud and collusion and [2] that he would be
adversely affected thereby.
429


the petition affidavits of witnesses or
documents supporting the cause of action or
defense and a sworn certification that he has
not theretofore commenced any other action
involving the same issues in the Supreme
Court, the Court of Appeals or different
divisions thereof, or any other tribunal or
agency; if there is such other action or
proceeding, he must state the status of the
same, and if he should thereafter learn that a
similar action or proceeding has been filed or
is pending before the Supreme Court, the
Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof
within five (5) days therefrom.(n)
prejudice to the original action being refiled

in the proper court. However, where the
judgment or final order or resolution is set
aside on the ground of extrinsic fraud, the
court may on motion order the trial court to
try the case as if a timely motion for new trial
had been granted therein. (n)
So if the judgment is set aside on the ground of extrinsic fraud, the
action can be re-filed. The court may, on motion, order the trial
court to try the case as if a timely motions for the trial had been
granted therein. That is similar to Rule 38, Section 6. Remember
when the court grants a petition for relief, the case will be tried all
over again as if a timely motion for new trial has been filed.
Q: What happens if by the time you re-file the case the prescriptive
period has already lapsed?
A: As a general rule, while the action for annulment is pending, the
prescriptive period for filing is interrupted. That is Section 8:
Take note that yung mga affidavits of your witnesses or documents

supporting your cause of action must be attached already. You
correlate this with Rule 37, Section 2 on new trial and Rule 38,
Section 3 on petition for relief.
Sec. 8. Suspension of prescriptive period. The

prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the
original action. (n)
What does Rule 37, Section 2 and Rule 38, Section 3 say about
motion for new trial or petition for relief? There is also an
AFFIDAVIT OF MERITS showing the nature of the fraud, accident
and the meritorious cause of action or defense. So more or less
that principle also applies in Rule 47.
Sec. 5. Action by the court. Should the court
find no substantial merit in the petition, the
same may be dismissed outright with specific
reasons for such dismissal.
Q: What happens if a judgment is annulled and it was earlier

executed?
A: Section 9:
Should prima facie merit be found in the

petition, the same shall be given due course
and summons shall be served on the
respondent. (n)
Sec. 9. Relief available. The judgment of

annulment may include the award of
damages, attorneys fees and other relief.
If the questioned judgment or final order or
resolution had already been executed, the
court may issue such orders of restitution or
other relief as justice and equity may warrant
under the circumstances. (n)
Under Section 5, the court may dismiss outright the petition if

there is no merit or no substantial merit. If there is, then the same
shall be given due course and summons shall be served on the
respondent.
Take note there will be SUMMONS here. Unlike in Rule 46, walang
summons yon. But here, there will be summons by the CA. That is
the difference between Rule 47 and Rule 46.
Under Section 9, the court may issue order of restitution or other

reliefs as justice and equity may warrant. That is similar to Rule 39,
Section 5 in case of execution pending appeal and the appealed
judgment is reversed, the court will now order mutual restitution
pursuant to Rule 39, Section 5.
Sec. 6. Procedure. The procedure in ordinary

civil cases shall be observed. Should a trial be
necessary, the reception of the evidence may
be referred to a member of the court or a
judge of a Regional Trial Court. (n)
Sec. 10. Annulment of judgments or final

orders of Municipal Trial Courts. An action to
annul a judgment or final order of a
Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over
the former. It shall be treated as an ordinary
civil action and sections 2, 3, 4, 7, 8 and 9 of
this Rule shall be applicable thereto. (n)
Q: What happens if the judgment is annulled? Can the plaintiff refile the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of
annulment shall set aside the questioned
judgment or final order or resolution and
render the same null and void, without
And the QUESTION is asked: Meron bang action for annulment of

judgments of MTC? Yaann!
430

Answer: YES. Kung merong annulment of judgment of the RTC, by

implication, meron din ang MTC. You cannot file it in the CA. You
file it in the RTC.
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.
Annulment of judgment of the MTC will fall under the rule on

jurisdiction of the RTC any action which does not belong to the
jurisdiction of any other courts (Section 19 [6], BP 129) or, an action
the subject matter of which is incapable of pecuniary estimation
(Section 19 [1], BP 129) That would be the authority.
Now its very clear, meron talaga. It is now stated categorically
there is an action for annulment of judgment also of the MTC. It
must be filed in the RTC having jurisdiction over the MTC. The
grounds are identical as those found in the previous section. So this
is an entirely new section.
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 factual findings
based thereon (Remys Freight Service GR 14167 June 8, 2006)
Annulment of judgments of quasi-judicial bodies

In Macalalag vs. Ombudsman 424 SCRA 741, 745 the Court ruled
that Rule 47 of the 1997 Rules of Civil Procedure on annulment of
judgments or final orders and resolutions covers annulment of the
judgments of RTC by the CA.
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 vs. Lapser 355 SCRA 658).
The silence of BP 129 on the jurisdiction of the CA to annul

judgments or final orders and resolutions of quasi-judicial bodies
like the DARAB indicates its lack of such authority (Springfield
Development Corporation vs. RTC of Mis Or. GR 142628 Feb 6
2007). It is hence, submitted that a party aggrieved who desires an
annulment of a judgment or resolution of quasi-judiciaL BODY
ENUMERATED UNDER Rule 43 may avail of a petition for review to
the CA under said rule and not an action to annul the judgment or
resolution.
COLLATERAL ATTACK OF A JUDGMENT

Distinction between a direct and collateral attack
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.
CERTIORARI (RULE 65)

Called a 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.
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 vs. CA 196 SCRA 705)
Examples: A petition for certiorari under Rule 65 is a direct attack.
It is filed primarily to have an order annulled. An action for
annulment of a judgment is likewise a direct attack on a judgment.
A motion to dismiss a complaint for collection of sum of money
filed by a corporation against the defendant on the ground that the
plaintiff has no legal capacity to sue is a collateral attack on the
corporation. A motion to dismiss is incidental to the main action for
a sum of money. It is not filed as an action intended to attack the
legal existence of the plaintiff (Macabingkil vs. PHHC 72 SCRA 326;
Co vs. CA 196 SCRA 705).
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 vs. CA 409 SCRA 455)
The task of the court in a certiorari proceeding is to determine
whether the lower court committed grave abuse of discretion
(Marcopper Mining vs. Solidbank Corporation, GR 134049 June 17,
2004). 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 any other purpose
(Landbank vs. CA, supra). Do not file a certiorari if your purpose is
to raise a factual issue or to ask for a re-evaluation of the facts and
the evidence (PILTEL vs. NTC 410 SCRA 82).
431

Rule 48
Rule 49
PRELIMINARY CONFERENCE
ORAL ARGUMENTS
Preliminary Conference is like a pre-trial in the CA. Iba lang ang

tawag but it is really a pre-trial because there are cases which fall
under the original jurisdiction of the CA, like annulment of
judgment of the RTC. Its purpose is the same as in Rule 18 on pretrial.
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own instance
or upon motion of a party, the court may
hear the parties in oral argument on the
merits of a case, or on any material incident
in connection therewith. (n)
Section 1. Preliminary conference. At any time

during the pendency of a case, the court may
call the parties and their counsel to a
preliminary conference:
The oral argument shall be limited to such

matters as the court may specify in its order
or resolution. (1a, R48)
(a) To consider the possibility of an amicable

settlement, except when the case is not
allowed by law to be compromised;
Sec. 2. Conduct of oral argument. Unless

authorized by the court, only one counsel
may argue for a party. The duration allowed
for each party, the sequence of the
argumentation, and all other related matters
shall be as directed by the court. (n)
(b) To define, simplify and clarify the issues

for determination;
(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
Sec. 3. No hearing or oral argument for

motions. Motions shall not be set for hearing
and, unless the court otherwise directs, no
hearing or oral argument shall be allowed in
support thereof. The adverse party may file
objections to the motion within five (5) days
from service, upon the expiration of which
such motion shall be deemed submitted for
resolution. (2a, R49)
(d) To take up such other matters which may

aid the court in the prompt disposition of the
case. (n)
How are cases decided in the CA? Normally, you file your petition;
submit argument in writing; then you wait for the decision. But
sometimes, the CA is provoked by legal issues. So the CA would
decide to listen to oral arguments of the parties, especially when
the case is controversial.
Sec. 2. Record of the conference. The

proceedings at such conference shall be
recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the
actions taken therein, the stipulations and
admissions made, and the issues defined. (n)
Under Section 3, one difference between motions filed in the RTC

and in the CA is that:
Sec. 3. Binding effect of the results of the

conference. Subject to such modifications
which may be made to prevent manifest
injustice, the resolution in the preceding
section shall control the subsequent
proceedings in the case unless, within five (5)
days from notice thereof, any party shall
satisfactorily show valid cause why the same
should not be followed. (n)
a)
b)
432
in the RTC, there must be notice of hearing (Rule 15)

attached to the motion, otherwise it will be denied;
in the CA, there is no need for notice of hearing to be
attached to the motion.

Rule 50
Normally, that happens when the party did not state the exact date
when he received the decision. He may just state the date of the
decision without stating the date of receipt. With that, the court
will presume that you received it on the date of the decision. It
might be beyond the period to appeal. So on its face, there is no
showing whether the appeal was within the 30 day period or not.
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under
Section 1, an appeal may be dismissed by the CA on its own (motu
propio) or upon motion of the appellee. And there are nine (9)
grounds for dismissal of appeal under Section 1:
The first ground is called the MATERIAL DATA RULE that the
record on appeal must show on its face that the appeal was taken
on time.
Section 1. Grounds for dismissal of appeal. An

appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the
appellee, on the following grounds:
In the 1973 case of BERKENKOTTER VS. CA, this ground was

supposed to be abolished already where the SC said that from now
on, We will no longer follow the material data rule. Meaning this is
abandoned.
(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;
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the
SC has already refused to apply this ground. So when they drafted
the Rules, dapat tinanggal na yon. Bakit nandito na naman? They
might have forgotten that it has
been abandoned by
jurisprudence, unless the intention is to return it.
(c) Failure of the appellant to pay the docket

and other lawful fees as provided in section 5
of Rule 40 and section 4 of Rule 41;
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR

THE RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY
THESE RULES;
(d) Unauthorized alterations, omissions or

additions in the approved record on appeal
as provided in section 4 of Rule 44;
Take note that under paragraph [a], the appeal was filed on time
but the record on appeal does not show that it was filed on time.
But here in paragraph [b], the appeal is really out of time. Take
note that you can raise this ground in the trial court. The trial court
is also authorized to dismiss an appeal on this ground (Rule 41,
Section 13). But assuming that you failed to raise it in the trial
court, you can raise it in the CA.
(e) Failure of the appellant to serve and file

the required number of copies of his brief or
memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of errors in
the appellants brief, or of page references to
the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;
Q: Are you under estoppel for not raising it earlier in the RTC?
Meaning, why did you not bring it out earlier, bakit hinintay pa sa
CA?
A: There is no estoppel here because actually this is a jurisdictional
challenge. When the notice of appeal is filed out of time or beyond
15 days, actually the judgment of the RTC has already become final
and executory. So you are now challenging the jurisdiction of the
CA. Meaning, you are trying to say that the CA has no jurisdiction to
review on appeal a judgment of the RTC which has already been
final and executory.
(g) Failure of the appellant to take the

necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
Q: Does the CA have the power to review and reverse an RTC

judgment which is already final and executory?
(i) The fact that the order or judgment

appealed from is not appealable. (1a; En Banc
Resolution, Feb. 17, 1998)
A: No more. The judgment which is already final cannot be changed

by the CA. Meaning, the CA has no jurisdiction to entertain the
appeal in that case. So in effect, it is a jurisdictional challenge which
can be raised even in the CA even if not raised earlier in the RTC.
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW

ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD
FIXED BY THESE RULES;
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE

DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF
RULE 40 AND SECTION 4 OF RULE 41;
So this only applies in cases where a record on appeal is required.

Failure to show on its face that the appeal was perfected on time
meaning, the appeal might have been perfected on time but by
reading the record on appeals, you will not see it.
Section 5 of Rule 40 is about filing of docket fees if you appeal from

the MTC to the RTC. Section 4 of Rule 41 refers to filing of docket
fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee?
433

A: Within the 15-day period, you already pay it in the RTC clerk of
court. Unlike before you pay it with the CA later. That is why as I
said, failure to pay the docket fee in the RTC is a ground for
dismissal of the appeal because of this.
Now if you file a brief without footnotes, without citing the law,
without citing the transcript, without citing the exhibit, that would
be dismissed. Thats what happened in the 1995 case of
DEL ROSARIO vs. CA 241 SCRA 553 [1995]
Q: But how about failure to pay the appeal fee in the MTC prior to
transmittal to the RTC? Is it a ground for dismissal by the CA?
FACTS: The CA dismissed the case simply because the appellants

brief was sloppily written no reference to exhibit, no reference to
page, no reference to anything. It was dismissed! The appellant
went to the SC pleading liberality.
A: To my mind NO because why will the CA dismiss it when the

appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang kaso
sa kanila? The CA has nothing to do with the appeal. It is supposed
to be in the RTC, bakit ang CA ang mag-dismiss? In other words,
there is something wrong with this amendment. (referring to
Section 5 of Rule 40)
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR

ADDITIONS IN THE APPROVED RECORD ON APPEAL AS PROVIDED
IN SECTION 4 OF RULE 44;
HELD: Petitioners plea for liberality in applying these rules in

preparing Appellants Brief does not deserve any sympathy. Long
ingrained in our jurisprudence is the rule that the right to appeal is
a statutory right and a party who seeks to avail of the right must
faithfully comply with the rules. Deviations from the rules cannot
be tolerated. The rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate the orderly
disposition of appealed cases. In an age where courts are bedeviled
by clogged dockets, these rules need to be followed by appellants
with greater fidelity. Their observance cannot be left to the whims
and caprices of appellants.
Thats only when there is a record on appeal. When the record on

appeal is approved, you have to reproduce it and you are not
allowed to make any alteration, revision or addition.
Seventh Ground: (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;
But if the appeal is from the RTC to the CA, you must you must pay
the docket fees because it is a specific ground for dismissal for the
dismissal under Rule 50.
Sometimes yung record mo kulang-kulang ba. And the party may

be directed to work for the completion. If you fail to complete the
record, your appeal will be dismissed.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE

THE REQUIRED NUMBER OF COPIES OF HIS BRIEF OR
MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES;
Please connect this with two previous provisions talking about

completion of the record in an appealed case. Im referring to Rule
41, Section 10 and Rule 44, Sections 5 to 6 because these
provisions talk also of completion of record. (please refer to your
codals)
Failure of the appellant to serve and file the required number of

copies of his brief. So, failure to file the appellants brief is a ground
for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief, what
will happen?
Rule 41, Sec. 10. Duty of clerk of court of the

lower court upon perfection of appeal. Within
thirty (30) days after perfection of all the
appeals in accordance with the preceding
section, it shall be the duty of the clerk of
court of the lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
A: You do not dismiss the appeal but the case will be submitted for
decision without appellees brief. The CA will make a resolution
that the case was submitted without the appellees brief.
Q: Does it mean to say that talo na yung appellee?
A: NO. There are many cases Ive seen where the appellee did not
file any brief Talo man gihapon ang appellant because anyway the
appellants brief has no merit. But normally in cases na delikado,
you better file an appellees brief. You owe that to your client. Just
imagine, lahat ng arguments dun hindi sagutin. Thats very
dangerous!
(b) To verify the completeness of the records

that will be transmitted to the appellate
court;
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS

IN THE APPELLANTS BRIEF, OR OF PAGE REFERENCES TO THE
RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D)
AND (F) OF RULE 44;
(c) If found to be incomplete, to take such

measures as may be required to complete the
records, availing of the authority that he or
the court may exercise for this purpose; and
Well, you may file an appellants brief, eh wala namang page

references, wala namang assignment of errors. My God! What kind
of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief
without telling the CA kung anong mali and then you expect the CA
to look for the errors. My golly! Do not expect the CA to do that.
Meron dapat citations e.g. See Exhibit A, See transcript
Merong reference ba! like kung anong page yan.
(d) To transmit the records to the appellate

court.
If the efforts to complete the records fail, he
shall indicate in his letter of transmittal the
exhibits or transcripts not included in the
records being transmitted to the appellate
434

court, the reasons for their non-transmittal,

and the steps taken or that could be taken to
have them available.
(d) An order disallowing or dismissing an

appeal;
consent;
The clerk of court shall furnish the parties

with copies of his letter of transmittal of the
records to the appellate court.
Rule 44, Sec. 5. Completion of record. Where
the record of the docketed case is
incomplete, the clerk of court of the Court of
Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty of
said court to take appropriate action towards
the completion of the record within the
shortest possible time.

therefrom; and
Rule 44, Sec. 6. Dispensing with complete

record. Where the completion of the record
could not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult causes, the
court, on its own motion or on motion of any
of the parties, may declare that the record
and its accompanying transcripts and exhibits
so far available are sufficient to decide the
issues raised in the appeal, and shall issue an
order explaining the reasons for such
declaration.

prejudice.
xxxxxx
So, if you appeal on any one of them, the other party can file a
motion to dismiss on the ground that it is not appealable.
Now, there is one ground for dismissal under the old rule na
nawala naman. Yun bang failure to prosecute the appeal, when
the records are not elevated to the CA the appeal can be dismissed.
Meaning, you have to follow up the clerk of court. Nawala yun eh.
That ground seems to have been abandoned. I think the attitude
there is let us not punish the appellant for the fault of the clerk of
court.
Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE

PRELIMINARY CONFERENCE UNDER RULE 48 OR TO COMPLY WITH
ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT WITHOUT
JUSTIFIABLE CAUSE; AND
Q: Is a default judgment appealable?

A: YES. It is appealable because it is a final judgment and not
merely interlocutory. Although under the 64 Rules, there is a direct
provision that a default judgment is appealable. Now, that
provision has disappeared. But even if it is not mentioned now,
default judgment is now covered by Rule 41 on final judgments.
Thats a new ground failure to appear on the preliminary

conference; failure to comply with orders, circulars, directives of
the court without justifiable cause. That is very broad. Thats a new
one not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT
APPEALED FROM IS NOT APPEALABLE.
Sec. 2. Dismissal of improper appeal to the

Court of Appeals. An appeal under Rule 41
taken from the Regional Trial Court to the
Court of Appeals raising only questions of law
shall be dismissed, issues purely of law not
being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by
petition for review from the appellate
judgment of a Regional Trial Court shall be
dismissed. (n)
The fact that the judgment or order appealed from is not

appealable. Interlocutory!
Q: What are the judgments or orders which are not appealable?
A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.
xxxxxx
NO APPEAL may be taken from:
An appeal erroneously taken to the Court of

Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright. (3a)

reconsideration;
Meaning, you must appeal to the right court and you must use the
proper mode of appeal. This incorporates in the Rules the
resolutions of the SC in the 1990 En Banc Resolution in MORILLO
vs. CONSUL (not found in the SCRA) and also incorporates the
provisions of Circular 2-90 dated March 9. 1990.

judgment;
(c) An interlocutory order;
435

Prior to this under the 1964 Rules, the rule is if there is wrong
appeal like pure questions of law to the CA, the CA should not
dismiss the appeal but elevate it to the SC. That rule has long been
abandoned. It was abandoned in the case of MORILLO and in
Circular 2-90. Now, it is here. Kung question of law you better
appeal to the SC. If you appeal to the CA, the CA will dismiss it.
A: YES, prior to the transmittal of the original record or the record

on appeal, the court may allow withdrawal of the appeal. (Section
9, Rule 41)
Q: Where will you file the motion to withdraw?
A: In the RTC if the records are still in the RTC. If the records of
appeal is already in the CA, you file the motion to the CA at
anytime before the filing of the appellees brief you can withdraw it
as a matter of right. When there is already an appellees brief, it
can be allowed in the discretion of the Court (Section 3). That is
similar to the Rule in Rule 17, Section 1:
MORILLO vs. CONSUL

HELD: There is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals.
Take note that this refers to appeal under Rule 41 from RTC. This
does not apply when the appeal to the CA is from a quasi-judicial
body. Appeal from a quasi-judicial body on a pure question of law
should be to the CA, never to the SC. You compare this with Rule
42, Section 2:
Rule 17, Section 1. Dismissal upon notice by

plaintiff. A complaint may be dismissed by
the plaintiff by filing a notice of dismissal at
any time before service of the answer or of a
motion for summary judgment. Upon such
notice being filed, the court shall issue an
order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal
is without prejudice, except that a notice
operates as an adjudication upon the merits
when filed by a plaintiff who has once
dismissed in a competent court an action
based on or including the same claim. (1a)
Rule 42, Section 2. Form and contents.- The

petition shall be filed in seven (7) legible
copies, with the original copy intended for
the court being indicated as such by the
petitioner, and shall:
xxx
(c) set forth concisely a statement of the
matters involved, the issues raised, the
specification of errors of fact or law, or both,
allegedly committed by the RTC and the
reasons or arguments relied upon for the
allowance of the appeal.
xxx
Q: Can you withdraw a complaint if you file a complaint in the

lower court?
A: YES, as a matter of right for as long as there is still no answer
filed. But when the defendant has filed an answer, dismissal of the
complaint is already discretionary upon the court. So it is the same!
Errors of fact or law, or both. This refers to Petition for Review

from the RTC to the CA.
Q: What happens if an appeal is already taken to the CA?
A: It shall be dismissed outright. Under the 64 Rules, the CA will
pass it on to the SC. But the liberal policy has now been changed.
Aaron [Cruz] asked a question (during the 1998 Review Class)
Deans ANSWER: Yes, there is a decided case. In the meantime, you
also lost the right to correct the error. Lumampas na eh!. Kaya it
would be dismissed. Hindi naman sinasabi na the appellant will be
directed to appeal properly. In other words, it will be dismissed.
Meaning, that is the end. That is the penalty for erroneous appeal.
Kaya nga according to MORILLO which became the basis of this,
there is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals. Kaya nga
before, very lenient pag mali under the 1964 Rules. But now in
Section 2 of Rule 50, wala na i-dismiss na.
WITHDRAWAL OF APPEAL
Sec. 3. Withdrawal of appeal. An appeal may
be withdrawn as of right at any time before
the filing of the appellees brief. Thereafter,
the withdrawal may be allowed in the
discretion of the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?
436

Rule 51
FRANCISCO vs. PERMSKUL 173 SCRA 324
JUDGMENT
HELD: The Court finds it necessary to emphasize that the

memorandum decision should be sparingly used lest it become an
addictive excuse for judicial sloth. It is an additional condition for
its validity that this kind of decision may be resorted to only in
cases where the facts are in the main accepted by both parties or
easily determinable by the judge and there are no doctrinal
complications involved that will require an extended discussion of
the laws involved. The memorandum decision may be employed in
simple litigations only, such as ordinary collection cases, where the
appeal is obviously groundless and deserves no more than the time
needed to dismiss it.
You already know that the Court of Appeals operates by division.

There are more than 50 justices there. Every division is composed
of 3. The 3 must be unanimous. In case there is no unanimity, there
should be a special division of 5 to hear the case all over again and
the majority rules. Although from what I gathered sa CA, this is a
farce . Actually, they do not discuss it, they will just give it to the
ponente. Tapos sabihin mo concur. Bihira lang talaga ang nagaparticipate unless siguro malakas ka sa isang justice and then magdissent para magkaroon ng division of 5. That is not really the
intention of the of the law.
Q: When is a case deemed submitted for judgment?

Lets go back to what we were saying before under Rule 36. Every
decision or resolution of a court shall clearly and distinctly state the
facts and the law on which it is based. If a decision does not state
its basis, it is a SIN PERJUICIO judgment. That is not a valid
judgment. The requirement applies to all courts whether MTC, RTC,
or CA. This is emphasized again in Section 5:
A: Section 1 of Rule 51:

Sec. 1. When case deemed submitted for
judgment. - A case shall be deemed
submitted for judgment:
Sec. 5. Form of decision. - Every decision or

129) (n)
A.
In Ordinary appeals. -
1)
Where no hearing on the merits of
the main case is held, upon the filing of the
last pleading, brief, or memorandum
required by the Rules or by the court itself, or
the expiration of the period for its filing.
2)Where such a hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum as may be required
or permitted to be filed by the court, or the
expiration of the period for its filing.
The CA must state its findings and conclusions or according to

Section 5 it may simply adopt the findings and conclusions set forth
in the decision or order appealed from. If the CA is going to affirm
the judgment of the RTC, it may simply copy or adopt the findings
and conclusions of the RTC. It is called a MEMORANDUM
DECISION.
B. In original actions and petitions for review.

1) Where no comment is filed, upon the
expiration of the period to comment.
If you will look at Section 5, it states that the provision is taken

from Section 40, BP 129. It is taken from the Judiciary Law.
2)Where no hearing is held, upon the filing of

the last pleading required or permitted to be
filed by the court, or the expiration of the
period for its filing.
Is this provision not an invitation to laziness on the part of the CA

justices? If the CA will affirm the judgment of the RTC, the work is
easier because it may simply adopt on its own the findings of the
RTC. If the CA would reverse the decision, the job would be more
difficult, because it would write an entirely new decision to rebut
or dispute the findings of the RTC. This is why when this provision
came out in the Judiciary Law, there was a sort of fear that this
might be the cause of laziness.
3)Where a hearing on the merits of the main

case is held, upon its termination or upon the
filing of the last pleading or memorandum as
may be required or permitted to be filed by
the court, or the expiration of the period for
its filing. (n)
The SC, well aware of that danger, clarifies in one case that
memorandum decisions are not allowed in all cases. The CA is only
allowed to render a memorandum decision in simple cases
especially when the appeal is dilatory and there is nothing wrong in
the appealed decision. But if the case is complicated or complex,
even if CA would affirm the decision, it cannot simply copy the
work of the RTC. It should write its own decision. The limitation or
guidelines was issued by the SC precisely to avoid the danger of
laziness on the part of CA justices. The SC said in the case of
Sec. 2. By whom rendered. - The judgment

shall be rendered by the members of the
court who participated in the deliberation on
the merits of the case before its assignment
to a member for the writing of the decision.
(n)
Sec. 3. Quorum and voting in the court. - The
participation of all three Justices of a division
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
437

required for the pronouncement of a

judgment or final resolution. If the three
Justices do not reach a unanimous vote, the
clerk shall enter the votes of the dissenting
Justices in the record.
Thereafter, the
Chairman of the division shall refer the case,
together with the minutes of the
deliberation, to the Presiding Justice who
shall designate two Justices chosen by raffle
from among all the other members of the
court to sit temporarily with them, forming a
special division of five Justices.
The
participation of all the five members of the
special division shall be necessary for the
deliberation required in section 2 of this Rule
and the concurrence of a majority of such
division shall be required for the
pronouncement of a judgment or final
resolution. (2a)
Q: When there are 2 or more plaintiffs or 2 or more defendants in

the cases appealed, is it possible that the CA will render decision
for one plaintiff but against the other plaintiffs, or in favor of one
defendant and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs will
lose especially when the facts are not identical. This is also true in
cases of 2 or more defendants when each one interposes separate
defenses. The defense of one may be true, others may be false. It is
possible that one defendant will win and other defendants will
lose.
Q: Suppose there are 2 defendants in a case. All of them lost.
Defendant A appealed. Defendant B did not appeal. On appeal,
defendant A won. Will the appeal of A benefit B who did not
appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the
appealing defendant. The judgment becomes final to those who did
not appeal even if it is wrong.
Sec. 4. Disposition of a case. - The Court of

Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify
the judgment or final order appealed from,
and may direct a new trial or further
proceedings to be had. (3a)
EXCEPTION: When the LIABILITY of the 2 parties is so INTERTWINED

that it would be absurd that one of them will win and the other will
lose. Thus, the appeal by the appealing party benefits his co-party
who did not appeal. This principle was laid down in some cases.
Among them is the case of
Sec. 5. Form of decision. - Every decision or

129) (n)
UNIVERSAL MOTORS CORP. vs. CA - 205 SCRA 428 [1992]

HELD: It is erroneous to rule that the decision of the trial court
could be reversed as to the appealing private respondent and
continue in force against the other private respondents. The latter
could not remain bound after the former had been released;
although the other private respondents had not joined in the
appeal, the decision rendered by the respondent court inured to
their benefit. When the obligation of the other solidary debtors is
so dependent on that of their co-solidary debtor, the release of the
one who appealed, provided it be not on grounds personal to such
appealing private respondent, operates as well as to the others
who did not appeal. It is for this reason, that a decision or
judgment in favor of the private respondent who appealed can be
invoked as res judicata by the other private respondents. So, their
liabilities are so intertwined.
Sec. 6. Harmless error. - No error in either the

admission or the exclusion of evidence and
no error or defect in any ruling or order or in
anything done or omitted by the trial court or
by any of the parties is ground for granting a
new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order,
unless refusal to take such action appears to
the court inconsistent with substantial
justice. The court at every stage of the
proceeding must disregard any error or
defect which does not affect the substantial
rights of the parties. (5a)
EXAMPLE: Mayakin Skywalker and Darth Mort borrowed money

from Qui Gon Jet. They bound themselves jointly and severally to
pay the loan. There is only one promissory note, one loan and both
Mayakin and Darth Mort signed. Their common defense is
payment. But the trial court ruled in favor of the plaintiff (Qui Gon
Jet) and ordered Mayakin and Darth Mort to pay. Mayakin
appealed but Darth Mort did not. On appeal, CA decided in favor of
Mayakin saying, Wala nang utang si Mayakin ba dahil bayad na!
How about Darth Mort? Darth Mort is also released.
Sec. 7. Judgment where there are several

parties. - In all action or proceedings, an
appealed judgment may be affirmed as to
some of the appellants, and reversed as to
others, and the case shall thereafter be
proceeded with, so far as necessary, as if
separate actions had been begun and
prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs
may be adjudged in such cases, as the court
shall deem proper. (6)
This principle is reiterated in the case of

CAYABA vs. COURT OF APPEALS 219 SCRA 571 [1993]
HELD: A reversal of a judgment on appeal is binding on the parties
to the suit but does not inure to the benefit of parties who did not
join in the appeal (as a general rule). The recognized exception is
when their rights and liabilities and those of the parties appealing
are so interwoven and dependent so as to be inseparable, in which
case a reversal as to one operates as a reversal to all.
Lets go to Section 7.
438

The rule is so similar in Criminal Procedure. When the appeal of

one accused benefits his co-accused who did not appeal especially
when the defense of such appealing accused is applicable to him.
What is a plain error? Because a plain error can be corrected by the

appellate court even if not asked by the parties, plain man? If you
will ask me, any plain error is yung talagang obvious mistake one
which is apparent to the eye.
Sec. 8. Questions that may be decided. - No error

which does not affect the jurisdiction over the
subject matter or the validity of the judgment
appealed from or the proceedings therein will be
considered unless stated in the assignment of
errors, or closely related to or dependent on an
assigned error and properly argued in the brief,
save as the court may pass upon plain errors and
clerical errors. (7a)
Now, suppose the trial court made an error in applying a law or in

interpreting a law. But it was not attacked by the losing party and it
was not corrected on appeal. Is it a plain error? It would seem no
and yet that is what happened in the 1993 case of SANTOS vs. CA
(221 SCRA 42).
But before we discuss the case of Santos, we have to know the
basics. There are two principles here to remember.
Q: Can the CA decide an issue which was not raised by the parties?
Can the CA correct the error which was never assigned by the other
party?
The appellant is the one who appeals and it is he who will file the
appellants brief and then he will make the assignment of errors.
The appellee will refute the appellants assignment of errors which
were committed by the trial court.
A: GENERAL RULE: Only errors which are stated in the appellants

brief should be considered. If the error is not assigned, that cannot
be corrected. This is just an extension of the rule that objections
and defenses not pleaded are deemed waived.
Q: Can the appellee impute errors or make assignment of errors?

A: The general rule is NO. If you are an appellee, you are not
appealing and thus you are accepting the decision. So if you think
the decision is in your favor pero mali pa rin, you must also appeal.
EXCEPTION: The following matters can be corrected or the court

can take cognizance even if the parties did not raise them:
1)
2)
3)
4)
Jurisdiction over the subject matter of the case;

Plain errors;
Clerical Errors.
Errors which are not assigned but closely related to or
dependent on an assigned error.
So an appellee is not allowed to assign errors committed by the

trial court except if the purpose of the assignment of errors is to
sustain the decision on another ground. Because sometimes you
agree with the decision but you do not agree with the reason. The
decision is correct but this should be the reason. Because actually,
you are defending the decision on another ground.
The fourth exception is taken from decided cases. According to the

SC, even if you will not mention a mistake committed by the trial
court if such mistake is related to the mistake mentioned, it can be
corrected. In the case of
Meaning the court made a mistake in arriving at the decision but

the decision is correct. Yan, puwede yan. But if you want the
decision to be changed, then you must also appeal.
ABEJARON vs. CA 208 SCRA 899 [1992]

HELD: An unassigned error closely related to the error properly
assigned, or upon which the determination of the question raised
by the error properly assigned is dependent, will be considered by
the appellate court notwithstanding the failure to assign it as error.
Now, let us go to the case of SANTOS which involves the law on

lease, particularly the interpretation and the application of Article
1678 Civil Code. Under the law on lease, suppose I will rent to you
my land and you built a building there and there is no agreement as
to who will own the building after the termination of the lease.
Suppose there is no stipulation, who will own the building?
While an assignment of error which is required by law or rule of

court has been held essential to appellate review, and only those
assigned will be considered, there are a number of cases which
appear to accord to the appellate court a broad discretionary
power to waive this lack of proper assignment of errors and
consider errors not assigned.
According to the Civil Code, the owner of the land has the option to
acquire the building by paying one half of its value. Pero, if I do not
want to appropriate the building, then you have the right to
remove the building provided you will not damage the land. So the
option to pay you belongs to the owner of the land. The lessee
cannot compel the owner of the land to pay.
The same principle was reiterated in the 1995 case of
Let us go now to the case of Santos. This is a very queer case.
CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE PRESIDENT

241 SCRA 165
SANTOS vs. CA 221 SCRA 42

FACTS: Artemio Santos et al are lessees of a piece of land. They
have not paid the rentals for 28 years. The lessor filed a case of
unlawful detainer against all of them before the Metropolitan Trial
Court of Pasig. The trial court rendered judgment against Santos et
al. So they were ordered ejected.
HELD: While the rule is that no error which does not affect
jurisdiction will be considered unless stated in the assignment or
errors, the trend in modern-day procedure is to accord the courts
broad discretionary power such that the appellate court may
consider matters bearing on the issues submitted for resolution
which the parties failed to raise or which the lower court ignored.
Now, these people were not satisfied. They still appealed to the
RTC. The RTC affirmed the judgment that they should be ejected
but modified it by ordering the lessor to reimburse the lessees for
Let us look at the second exception plain errors.
439

the latters improvements on the leased property. So, affirmed, but

bayaran mo iyong mga bahay ng mga tao. (DEAN I: To my mind,
that portion of the decision is wrong. You cannot order the lessor
to reimburse.)
So the SC said that it is too unfair for the landowner still to be

required to pay. Imagine they stayed there for 28 years, hindi pa
nagbayad. I think those are the factors. So in other words, equity
bah! So the Court has to look for a reason to justify. Ang nakita is
plain error when you do not know how to apply the law, then it is
plain error. But actually, that should be an assigned error. It is a
very interesting case.
But despite that, Santos et al were not satisfied. They still appealed
to the CA. The lessor did not appeal so obviously, the lessor is
willing to pay. Although he has no obligation to pay the
improvements, pero sige na lang para matapos na! He did not
appeal.
Sec. 9. Promulgation and notice of judgment. After the judgment of final resolution and
dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall
be delivered for filing to the clerk who shall
indicate thereon the date of promulgation
and cause true copies thereof to be served
upon the parties or their counsel. (n)
Now, the CA affirmed again the ejectment. So tatlo na. There were
three courts where the occupants lost. But the CA deleted the
portion of the RTC decision ordering reimbursement of the
improvements. It was really wrong. Walang reimbursement diyan.
So this time, Santos et al appealed to the SC. And they say that the
portion of the decision deleting our right to reimbursements is
wrong because the owner of the land is not questioning it, he is not
appealing so why should the CA delete it? So, meaning payag iyong
owner. Therefore that portion of the decision of the CA where we
are no longer entitled to reimbursement is erroneous. The CA has
no power to delete that portion of the RTC decision because there
was no appeal from the landowner.
Sec. 10. Entry of judgments and final

resolutions. - If no appeal or motion for new
trial or reconsideration is filed within the
time provided in these Rules, the judgment
or final resolution shall forthwith be entered
by the clerk in the book of entries of
judgments. The date when the judgment or
final resolution becomes executory shall be
deemed as the date of its entry. The record
shall contain the dispositive part of the
judgment or final resolution and shall be
signed by the clerk, with a certificate that
such judgment or final resolution has become
final and executory. (2a, R36)
ISSUE: Is the decision of the CA correct?

HELD: YES. The CA is correct. It is true that the rule is well-settled
that a party cannot impugn the correctness of a Judgment not
appealed from by him, and while he may make counter-assignment
of errors, he can do so only to sustain the judgment on other
grounds but not to seek modification or reversal thereof for in such
a case he must appeal. A party who does not appeal from the
decision may not obtain any affirmative relief from the appellate
court other than what he has obtained from the lower court, if any,
whose decision is brought up on appeal. However, the Rules of
Court and jurisprudence authorize a tribunal to consider errors,
although unassigned, if they involve (1) errors affecting the lower
court's Jurisdiction over the subject matter, (2) plain errors not
specified, and (3) clerical errors.
Sec. 11. Execution of judgment. - Except

where the judgment or final order or
resolution, or a portion thereof, is ordered to
be immediately executory, the motion for its
execution may only be filed in the proper
court after its entry.
In original actions in the Court of Appeals, its
writ of execution shall be accompanied by a
certified true copy of the entry of judgment
or final resolution and addressed to any
appropriate officer for its enforcement.
Under Article 1678, it is the lessor who has the option to pay for
one-half of the value of the improvements which the lessee has
made in good faith. The lessee cannot compel the lessor to
appropriate and reimburse. Therefore, the decision of the RTC
ordering the lessor is actually erroneous.
In appealed cases, where the motion for

execution pending appeal is filed in the Court
of Appeals at a time that it is in possession of
the original record or the record on appeal,
the resolution granting such motion shall be
transmitted to the lower court from which
the case originated, together with a certified
true copy of the judgment or final order to be
executed, with a directive for such court of
origin to issue the proper writ for its
enforcement. (n)
Hence, the award of reimbursement for improvements by the trial

court in favor of petitioners amounts to a plain error which may be
rectified on appeal although not specified in the appellees brief.
But the trouble is, the landowner did not appeal. If we follow the
ruling, then lahat ng mali ng trial court ay plain error na. That is
what the SC said. Bakit man naging plain error ito when actually it
will not qualify as plain error ? If we will follow that line of
reasoning, every mistake committed by a trial court can be
corrected being a plain error.
Q: Now, how do you execute a judgment of the CA?

To my mind, merong equity ito, eh. Analyze the case. You are
occupants for 28 years and you did not pay. Ayaw mo lumayas,
bayaran ka pa? There is something wrong there already. I think that
is the factor eh.
A: Under Section 11, it depends if it is an original action or an

appealed case.
For an appealed case, in case of execution pending appeal, take
note that if the records of the case are already elevated to the CA,
440

motion for execution pending appeal should already be filed there.

And if the CA grants the motion to execute pending appeal, it will
follow the third paragraph there. It will issue the order and direct
the RTC to enforce the judgment.
Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a
motion for reconsideration of a judgment or
final resolution within fifteen (15) days from
notice thereof, with proof of service on the
adverse party. (n)
Now, you should correlate this with Rule 39 Sections 1 and 2:

Rule 39, Section 1. Execution upon judgments
or final orders. - Execution shall issue as a
matter of right, on motion , upon a judgment
or order that disposed of the action or
proceeding upon the expiration of the
period-to appeal therefrom if no appeal has
been duly perfected.
Q: Can a party file a motion for reconsideration of a CA decision?

A: YES. That is very obvious. (Section 1)
Sec. 2. Second motion for reconsideration. - No
second motion for reconsideration of a
judgment of final resolution by the same
party shall be entertained. (n)

be applied for in the court or origin, on
Q: Can you file more than one motion for reconsideration?

A: NO. No second motion for reconsideration of a judgment or final
resolution by the same party shall be entertained. (Section 2) There
is no such thing as second motion for reconsideration.

the writ of execution.
Section 2 of Rule 52 is also in accord with Section 11 of the

Judiciary law. Section 11 of the Judiciary law governs how may
times you can file a motion for reconsideration in the CA.
Section 2. Discretionary execution.
BP 129, Section 11. Quorum -
A. Execution of a judgment or final order

pending appeal.- On motion of the prevailing
party with notice to the adverse party filed in
the trial court while it has jurisdiction over
the case and is in possession of either the
original record or the record on appeal, as the
case may be, at the time of the filing of such
motion, said court may, in its discretion,
order execution of a judgment or final order
even before the expiration of the period to
appeal.
xxxx A motion for reconsideration of its

decision or final resolution shall be resolved
by the Court within ninety (90) days from the
time it is submitted for resolution and no
second motion for reconsideration from the
same party shall be entertained.
Under par. (3), the CA has 90 days from the time it is submitted for
the resolution to rule on a motion for reconsideration.
Sec. 3. Resolution of motion. - In the Court of
Appeals, a motion for reconsideration shall
be resolved within ninety (90) days from the
date when the court declares it submitted for
resolution. (n)

Discretionary execution may only issue upon
good reasons to be stated in a special order
after due hearing.
The CA is given only 90 days to resolve a motion for

reconsideration.
Sec. 4. Stay of execution. - The pendency of a
motion for reconsideration filed on time and
by the proper party shall stay the execution
of the judgment or final resolution sought to
be reconsidered unless the court, for good
reasons, shall otherwise direct. (n)
B. Execution of several, separate or partial

judgments.- A several, separate or partial
judgment or final order pending appeal.
Q: What happens when a judgment of the CA is the object of a

motion for reconsideration? What happens to the execution?
A: Stayed it is not yet final unless the court for good reasons shall
otherwise direct like when there is a good ground to execute
pending appeal.
441

Rule 53
resolved within ninety (90) days from the

date when the court declares it submitted for
resolution. (n)
NEW TRIAL
Q: What is the ground for new trial in CA?
Sec. 4. Procedure in new trial. - Unless the

court otherwise directs, the procedure in the
new trial shall be the same as that granted by
a Regional Trial Court. (3a)
A: The ground for new trial is newly discovered evidence. (Sec 1)

Sec. 1. Period for filing; ground. - At any time
after the appeal from the lower court has
been perfected and before the Court of
Appeals loses jurisdiction over the case, a
party may file a motion for a new trial on the
ground of newly discovered evidence which
could not have been discovered prior to the
trial in the court below by the exercise of due
diligence and which is of such a character as
would probably change the result. The
motion shall be accompanied by affidavits
showing the facts constituting the grounds
therefor and the newly discovered evidence.
(1a)
Q: If the motion for new trial is granted, can the CA conduct the
new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly
section 9, the CA can receive evidence and act as a trial court. That
is why it is a powerful court.
BP 129, Section 9, last paragraph:
The Court of Appeals shall have the power
to try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues raised in
cases falling within its original and appellate
jurisdiction, including the power to grant and
conduct new trials or further proceedings.
The ground is newly discovered evidence similar to the second

ground for new trial in the RTC (FAME). Fraud, accident, mistake
hindi kasali. Only newly discovered evidence is the ground under
Rule 53.
Rule 54
Q: Suppose the case is before the SC, can a party file a motion for
new trial on the ground of newly discovered evidence before the
SC under Rule 53 in a civil case?
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions. - All the cases of the Court of Appeals
shall be allotted among the different
divisions thereof for hearing and decision.
The Court of Appeals, sitting en banc, shall
make proper orders or rules to govern the
allotment of cases among the different
divisions, the constitution of such divisions,
the regular rotation of Justices among then
the filing of vacancies occurring therein, and
other matters relating to the business of the
court; and such rules shall continue in force
until repealed or altered by it or by the
Supreme Court.
A: NO. The SC said in the case of

NAVARRA vs. CA 204 SCRA 850
HELD: The Rules of Court allows only two (2) occasions where a
party may file a motion for new trial on the ground of newly
discovered evidence. That motion may be filed only with the trial
court under Rule 37 or with the CA under Rule 53 BUT NEVER with
the SC.
Time and again, We have stressed that the SC is not a trier of
facts. It is not a function of the SC to analyze or weigh all over again
the evidence already considered in the proceedings below. Its
jurisdiction is limited to reviewing only errors of law that may have
been committed by the lower courts.
Section 2. Quorum of the court. A majority of

the actual members of the court shall
constitute a quorum for its sessions en banc.
Three members shall constitute a quorum for
the sessions of a division. The affirmative
votes of the majority of the members present
shall be necessary to pass a resolution of the
court en banc. The affirmative votes of three
members of a division shall be necessary for
the pronouncement of a judgment or final
resolution, which shall be reached in
consultation before the writing of the opinion
by any member of the division.
If there would be a motion for new trial with the SC and it would be
granted, you are converting the SC into a trial court.
Sec. 2. Hearing and order. - The Court of
Appeals shall consider the new evidence
together with that adduced at the trial
below, and may grant or refuse a new trial, or
may make such order, with notice to both
parties, as to the taking of further testimony,
either orally in court, or by depositions, or
render such other judgment as ought to be
rendered upon such terms as it may deem
just. (2a)
(just read)
Sec. 3. Resolution of motion. - In the Court of
Appeals, a motion for new trial shall be
442

Rule 55
Rule 56
PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS
PROCEDURE IN THE SUPREME COURT
The decisions of the CA must be published. Kung wala sa Philippine

Reports, nasa Court of Appeals Reports. They call that CARA (Court
of Appeals Reports Annotated).
This is an entirely new provision. In the SC, there are 2 types of

cases ORIGINAL and APPEALED. The SC has both the original and
appellate jurisdiction.
Section 1. Publication. - The judgments and final

resolutions of the court shall be published in the Official
Gazette and in the Reports officially authorized by the
court in the language in which they have been originally
written, together with the syllabi therefore prepared by
the reporter in consultation with the writers thereof.
Memoranda of all other judgments and final
resolutions not so published shall be made by the
reporter and published in the Official Gazette and the
authorized reports.
What are the original cases cognizable by the SC?

A.) ORIGINAL CASES
SECTION 1. Original cases cognizable. Only
petitions
for
certiorari,
prohibition,
mandamus, quo warranto, habeas corpus,
disciplinary proceedings against members of
the judiciary and attorneys, and cases
affecting ambassadors, other public ministers
and consuls may be filed originally in the
Supreme Court. (n)
Section 2. Preparation of opinions for publication. - The

reporter shall prepare and publish with each reported
judgment and final resolution a concise synopsis of the
facts necessary for a clear understanding of the case,
the names of counsel, the material and controverted
points involved, the authorities cited therein, and a
syllabus which shall be confined to points of law.
You know them no? Certiorari, prohibition, mandamus, quo

warranto, habeas corpus, cases affecting ambassadors other public
ministers and consuls nasa Constitution din yan. This is only a
repetition of Article VIII, Section 5 (1) of the Constitution. Aside
from that, the Rules of Court give the SC authority to hear
disciplinary proceedings against members of the judiciary,
disbarment or removal of judges. SC man yan ba! And they are
governed specially for disbarment by Rule 139-B of the Rules of
Court.
Section 3. General make-up of volumes. - The published

decisions and final resolutions of the Supreme Court
shall be called "Philippine Reports," while those of the
Court of Appeals shall known as the "Court of Appeals
Reports." Each volume thereof shall contain a table of
the cases reported and the cases cited in the opinions,
with a complete alphabetical index of the subject
matters of the volume. It shall consist of not less than
seven hundred pages printed upon good paper, well
bound and numbered consecutively in the order of the
volumes published.
SEC. 2. Rules applicable. The procedure in

original cases for certiorari, prohibition,
mandamus, quo warranto and habeas corpus
shall be in accordance with the applicable
provisions of the Constitution, laws, and
Rules 46,48, 49, 51, 52 and this Rule, subject
to the following provisions:
a.) All references in said Rules to the Court of
Appeals shall be understood to also apply to
the Supreme Court;
Powers and Functions of the Supreme Court:

1)
2)
3)
Adjudication
Discipline
Rule-Making
b.) The portions of said Rules dealing strictly

with and specifically intended for appealed
cases in the Court of Appeals shall not be
applicable; and
c.) Eighteen (18) clearly legible copies of the
petition shall be filed, together with proof of
service on all adverse parties.
The proceedings for disciplinary action
against members of the judiciary shall be
governed by the laws and Rules prescribed
therefor, and those against attorneys by Rule
139-B, as amended. (n)
a.) All references in said Rules to the Court of Appeals shall be
understood to also apply to the Supreme Court
Actually, kulang ito eh. These proceedings are actually governed
more by Rule 65 and 66. But they are also covered by Rule 46, 48,
49, 51 and 52 (CA) and it also applies to SC.
443

b.) The portions of said Rules dealing strictly with and specifically
intended for appealed cases in the Court of Appeals shall not be
applicable; and
Q: What are the grounds for dismissal of an appeal before the SC?
A: Section 5:
This is more of legal and judicial ethics.
Section 5. Grounds for dismissal of appeal.The appeal may be dismissed motu propio or
on motion of the respondent on the following
grounds:
Q: When you file a petition before the SC for certiorari, prohibition

or mandamus, how many copies?
A: First filing 18 copies minimum. Why? Because you do not
know whether it will be considered as an en banc case or a division
case. The SC operates in 2 ways. It decides cases either en banc or
by division. 18 copies is required because 15 na ang justices, only
three (3) for the clerk.
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;
Q: How about subsequent pleadings? How many copies?

A: Depende. Kung en banc, all subsequent pleadings, still 18 copies.
Kapag division case, 9 na lang. Now, there are three divisions in the
SC the first, second and third divisions. And every division is
composed of five (5) members.
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;
The SC meets en banc twice a week Tuesday and Thursday

unless they have changed it. It is called an en banc session. Cases
are raffled for assignment by division. Monday and Wednesday,
hiwa-hiwalay sila the 5 justices who belong to the same division
meet together and discuss cases which are raffled to that division.
Friday is a NO SESSION but a working day. That is when they study,
prepare their decisions and resolutions. That is why we can also
predict when will the result of the Bar be released because that is
an en banc session. Only the SC en banc can order the release of
the results of the Bar Exam. They have to pass a resolution.
f. Error in the choice of mode of appeal; and

g. The fact that the case is not appealable to
the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The grounds are
identical, to wit:
B. APPEALED CASES
SEC. 3. Mode of appeal. An appeal to the
Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed is
death,
reclusion
perpetua
or
life
imprisonment. (n)
Rule 45, Sec. 5. Dismissal or denial of petition.

The failure of the petitioner to comply with
any of the foregoing requirement 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 the
dismissal thereof.
There is only one way of appeal to the SC. The only mode of appeal
recognized is Petition for Review by Certiorari under Rule 45,
except in criminal cases when the penalty imposed by the RTC is
death penalty, reclusion perpatua or life imprisonment where only
ordinary appeal (under Rule 41) is required. Outside of that, the
only mode of appeal to the SC is Petition for Review by Certiorari.
The Supreme Court may on its own initiative

deny the petition on the ground that the
appeal is without merit, or is prosecuted
manifestly for delay or that the questions
raised therein are too unsubstantial to
require consideration.
Please connect this with Rule 45, Section 9:

Rule 45, Sec. 9. Rule applicable to both civil
and criminal cases.- The mode of appeal
prescribed in this rule shall be applicable to
both civil and criminal cases except in
criminal cases where the penalty imposed is
death,
reclusion;
perpetua
or
life
imprisonment.
Sec. 6. Disposition of improper appeal Except

as provided in section 3, Rule 122 regarding
appeals in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment, an appeal taken to the
Supreme Court by notice of appeal; shall be
dismissed.
Rule 56, Sec. 4. Procedure.- The appeal shall

be governed by and disposed of in
accordance with the applicable provisions of
the Constitution, laws, Rules 45, 48, sections
l,2, and 5 to 11 of Rule 51, 52 and this rule.
An appeal by certiorari taken to the Supreme

court from the Regional Trial Court
submitting issues of fact may be referred to
the Court of Appeals for decision or
444

appropriate action. The determination of the

Supreme Court on whether or not the issues
of fact are involved shall be final.
2)
This is already discussed in Rule 50, Section 2. A wrong appeal is a

ground for a dismissal of such appeal.
Criminal cases in which the appealed decision imposes

death penalty; Criminal cases where a change of venue is
required to avoid miscarriage of justice where SC has to
make an order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba! Only for
death penalty.
Q: If the appeal is on pure question of law (it should be before the

SC) and by mistake the party appealed to the CA, what will
happen?
3)
Cases raising novel questions of law;

There is a point of law where there is no decided case yet.
Meaning, such legal issue is raised for the first time.
A: The appeal will be dismissed under Rule 50. The CA will not
endorse the case to the SC.
4)
Q: Suppose you will appeal by certiorari to the SC under Rule 45.
Tapos, halo pala hindi naman pala question of law lahat may
kasamang question of fact. What will happen now in the appeal?
Cases affecting ambassadors, other public ministers or

consuls;
5)
A: Under Rule 56, Section 6, the SC may or may not dismiss the
appeal. It may refer the matter to the CA baliktad noh? So it is
not the same as Rule 50, Section 2.
Cases involving decisions, resolutions, orders of the

COMELEC, COA, or the Office of the OMBUDSMAN,
SANDIGANBAYAN in administrative disciplinary cases;
6)
Cases in which the penalty involved is a dismissal of the

judge, officer or employee of the judiciary, disbarment of a
lawyer or even suspension of any of them for a period of
more than one (1) year of fine exceeding P10,000.
Section 7. Procedure if opinion is divided.

Where the court en banc is equally divided in
opinion, or the necessary majority cannot be
had, the case shall again be deliberated on,
and if after such deliberation no decision is
reached, the original action commenced in
the court shall be dismissed; in appealed
cases, the judgment or order appealed from
shall stand affirmed; and on all incidental
matters, the petition or motion shall be
denied.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge

or disbarment, en banc yan. And sometimes, you cannot
even identify who is the ponente. Ang tawag diyan per
curiae. The ponente is not identified.
7)
Cases where a doctrine or principle of law laid down by the

Court en banc or division may be modified or reversed;
A decision by a division can only be reversed by the SC en
banc. The same is true in a decision previously decided en
banc. Only SC en banc can change its mind and reverse its
previous ruling.
What happens if the justices of the SC are equally divided?

For instance, there were 4 in attendance in a division dahil absent
ang isa the result is 2:2. So, we will deliberate again, but still 2:2.
If that is so, the decision appealed from is considered affirmed. In
other words, the ruling in the lower court is considered correct.
8)
The counterpart of this rule in Criminal Procedure is Rule 125,

Section 3. If after deliberation, the justices are even, they will
deliberate again but still even. The decision must be acquittal. Since
you cannot break the tie, it must be in favor of the accused.
Cases assigned in a division which in the opinion of at least

three (3) members thereof, merit the attention of the Court
en banc and are acceptable to the majority of the actual
members of the court en banc;
Meaning, it is a division case but at least three members of
the division are of the view that it should be elevated to the
SC en banc. And the majority of the entire court also agree.
EN BANC CASES
Example: A case is assigned to a division. After deliberating,
majority of the 5 hold that the case is so important that
referral to the entire membership is proper. Then when it is
referred en banc, majority accepts it, then it is to be
decided en banc.
Now, before we leave this topic, of course we know very well that
when you appeal to the SC, there are two possibilities either it
will be heard by a division (there are 3 divisions there) or your case
might be decided by the entire SC en banc.
Q: What cases are heard by the SC en banc?
Specific Example: The case of PEOPLE vs. LUCAS in Criminal

Law. ISSUE: Is the penalty of reclusion perpetua divisible or
indivisible? The original ruling there by a division is that it is
a divisible penalty. But upon motion for reconsideration by
the Solicitor General, the first division realized that
maraming implications ito. So at least 3 or 4 voted na
itapon natin to the SC en banc and then the entire voted.
A: There was a circular in 1993 issued by the SC enumerating en

banc cases:
1)
Cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, executive order,
presidential decree, proclamation, order, instruction,
ordinance or regulations in question. For example, the
recent Oil Deregulation Law;
BAR QUESTION: A lost in an appealed decision. He filed a

motion for reconsideration. He is insisting that his motion
be resolved by the entire membership of the SC. Can he
445

insist that his motion for reconsideration be heard by the

entire membership of the SC en banc when he lost in a
division?
A: NO, because the SC en banc is not a separate court from
one of its divisions. You cannot say that a decision by a
division can be appealed to the SC en banc because it is the
same court. The best that can happen to you is you
convince the members of the same division to refer the
matter to the entire court en banc and try to convince the
majority of the court en banc to accept it. That is the
correct move.
9)
All other cases as the court en banc, by the majority of its

actual members, may deem of sufficient importance to
merit its attention.
These cases are those involving the welfare of the nation
like Lotto case, EVAT, Manila Hotel case. This is also the
ground invoked by Imelda Marcos where she tries to
convince the court en banc to hear her motion for
reconsideration.
GOODLUCK AND GOD BLESS SA EXAM!!
446

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CIVIL PROCEDURE NOTES COMPILED

UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

There is a table, a gavel, there is someone sitting there. Then

Substantive law a part of law which creates,

A court has no physical existence, only a legal one.

Procedural/Adjective/Remedial Law prescribes

A: A court is an entity or body vested with a portion of the judicial

Sources of Remedial law:

Similarly, when you are asked to describe a corporation, you will

Major divisions in law:

A: This is because the Constitution provides that the judicial

Scope of Remedial Law:

There is a division of labor and this division is done thru delineating

Just as corporations cannot act without its officers, a court cannot

JUDICIAL POWER includes the duty of the courts of justice to

Q: Distinguish court from judge.

The power of judicial review is the Supreme Court's power to

Court is the entity, body, or tribunal vested with a

Judges are human beings they die, they resign,

CIVIL PROCEDURE NOTES COMPILED

themselves. The court is continuous. It does not die

The two concepts may exist independently of each

Court of Tax Appeals (RA 1125)

Policy of Judicial Hierarchy

Hearing and Trial

Hearing is not synonymous with trial. The words hearing and

While it is true for example that the Supreme Court, Court of

HIERARCHY OF THE COURTS

Classification of courts in general.

A: Generally, courts may be classified as:

a.) Regular courts

CONSTITUTIONAL COURTS vs. STATUTORY COURTS

REGIONAL TRIAL COURTS

In our country, there is only one Constitutional court the

CIVIL PROCEDURE NOTES COMPILED

In political law, the power to create carries with it the power to

Q: Is the SC an original or appellate court?

SUPERIOR COURTS vs. FIRST-LEVEL COURTS

Q: Distinguish superior courts from inferior courts.

Q: How about the RTC? Is the RTC an original or appellate court?

INFERIOR COURTS, otherwise known as courts of special or limited

Q: What courts are superior or inferior?

A: The MTC however, is a 100% original court. It is the lowest court

Q: How about the MTC? Is the MTC an original or appellate court?

CIVIL COURTS vs. CRIMINAL COURTS

Q: Distinguish civil courts from criminal courts.

A superior court may therefore handle civil, criminal cases while an

The MTC is a first-level (inferior) court so that its power is limited to

So, in the Philippines, there is no such thing as a 100% criminal

ORIGINAL COURT vs. APPELLATE COURT

Q: Distinguish original court from appellate court.

CIVIL PROCEDURE NOTES COMPILED

COURTS OF LAW vs. COURTS OF EQUITY

ALONZO vs. IAC - May 28, 1987

Q: Distinguish Courts of Law from Courts of Equity.

HELD: The question is sometimes asked, in serious inquiry or in

A: COURTS OF LAW are tribunals administering only the law of the

Courts Of Law dispose cases according to what the promulgated

Those whose proceedings are enrolled and which are bound to

Q: Are the Philippine courts, courts of law? Or courts of equity?

Those which have jurisdiction over settlement of estate of

A: In the Philippines, our courts, original or appellate, are both

LAND REGISTRATION COURTS

INHERENT POWERS OF THE COURT

Their very existence automatically necessitates the existence of

Section 5. Inherent powers of courts. Every

Estoppel is an equitable doctrine which means that it is not fair that

(a) to preserve and enforce order in its

(c) to compel obedience to its judgments

(d) to control, in furtherance of justice, the

CIVIL PROCEDURE NOTES COMPILED

a case before it,

Under Section 3, Interim Rules:

(e) to compel the attendance of persons to

a) Writs of certiorari, prohibition, mandamus,

(f) to administer or cause to be administered