CIVIL PROCEDURE

GENERAL PRINCIPLES
1. What is the object of remedial law ?
SUGGESTED ANSWER: The object of procedural law is not to cause undue
protractionof the litigation, buta. to facilitate the adjudication of conflicting claims
and b. to serve, rather than defeat, the ends of justice. (Santo Tomas University
Hospital v.Surla, et al., G.R. No. 129718, prom. August 17, 1998 referring to
Continental Leaf Tobacco[Phil.], Inc. v. Intermediate Appellate Court, 140 SCRA 269
citing Dimayacyac v. Court of Appeals, 93 SCRA 265) NOTES AND COMMENTS:: Do
not confuse the general object of remedial law withthe objective of the Rules of
Court
of securing a just, speedy and inexpensive disposition of every action and
proceeding.
(Sec. 6, Rule 1, ROC)The object of remedial law is a general statement which refers
to the whole spectrum of all areas of remedial law WHILE the objective of the Rules
of Court specifically refers only tothe Rules.The distinction may only be a matter of
semantics because the end result of the object of remedial law with the objective of
the Rules of Court is the same.
2. Define civil procedure.
SUGGESTED ANSWER:a. The method of conducting a judicial proceeding b. to
resolve disputes involving private partiesc. for the purpose of enforcing rights or
obtaining redress for the invasion of rights.
THE RULE- MAKING POWER OF THESUPREME COURT
COURTS, IN GENERAL
2. What is the function of courts ?
SUGGESTED ANSWER:
The function of courts is to decide actual controversies,applying the law, and not to
give opinions upon abstract propositions. (Guarduno v. Diaz, 46Phil. 472) They apply
or interpret the laws. They do not formulate policy, which is the province of the
legislative and executive branches of government. (Pagpalain Haulers, Inc.
v.Honorable Trajano, etc., et al., G.R. No. 133215, prom. July 15, 1999)
4. What are the measures which ensure the independence of the courts ?
SUGGESTED ANSWER

a. The Judiciary shall enjoy fiscal autonomy

b. . b. Appointmens to the judiciary shall be made from the nominees of the
Judicial and Bar Council, which appointments do not need any Commission on
Appointment confirmation.
c. Salaries of members of the judiciary shall be fixed by law and not to be
decreasedduring their continuance in office.
d. Members of the judiciary shall hold office during good behavior until they
reach theage of 70 years or become incapacitated to discharge the duties of
their office.
e. Only the Supreme Court shall have the power to discipline judges of lower
courts, or order their dismissal.

f. Members of the Supreme Court may be removed from office only upon reaching
theage of 70 years, incapacioty or through impeachment.
g. Members of the judiciary shall not be designated to any agency performing
quasi- judicial or administrative functions.
h. Supreme Court jurisdiction shall not be reduced without its consent.
THE RULES OF COURT
5 . May the Supreme Court suspend the application of the Rules of Court ? Explain
briefly.
SUGGESTED ANSWER:
Yes.
It is within the power of the Court to temper rigid rulesin favor of substantial justice.
While it is desirable that the Rules of Court be faithfully and even meticulously
observed, the Courts should not be so strict about procedural lapses that do not
really impair the proper administration of justice. If the rules are intended to ensure
the orderly conduct of litigation, it is because of the higher objective they seek
which is the protection of substantive rights of the parties. (Lao v. Court of Appeals,
et al., G.R. No. 47013; Co v. Court of Appeals, et al., G.R. No. 60647; and the
Associated Anglo-American Tobacco Corporation v .Court of Appeals, et al., G.R. Nos.
60958-59, prom. January 17, 2000)When they are rigid and strict in application,
resulting in technicalities that tend to frustrate rather than promote justice, the
Supreme Court is empowered to suspend its own rules(People of the Philippines v.
Flores, et al., G.R. No. 106581, prom. March 3, 1997), and except a particular case
from their operation whenever the higher interests of justice so require. (Fortich
,etc., et al., v. Corona, et al., G.R. No. 131457, prom. April 24, 1998) NOTES

AND COMMENTS:
a. Examples where the Supreme Court suspended the application of the Rules of
Court:
1) The Court of Appeals may entertain a second motion for reconsideration of
itsdecision although the filing of such motion violates a prohibition thereof. (Lao v.
Courtof Appeals, , et al., G.R. No. 47013; Co v. Court of Appeals, et al., G.R. No.
60647; andthe Associated Anglo-American Tobacco Corporation v. Court of Appeals,
et al., G.R. Nos. 60958-59, prom. January 17, 2000 )2) The Supreme Court allowed
the submission of a certified true copy of the Special Order granting execution
pending appeal as substantial compliance with the requirement of Section 1, Rule
65 of the Rules of Court that the petition be accompanied by a certified true copy
of the judgment or order subject thereof. (Lao v. Court of Appeals, et al., G.R. No.
47013; Co v. Court of Appeals, et al., G.R. No. 60647, and the Associated AngloAmerican Tobacco Corporation v. Court of Appeals, et al., G.R. Nos.60958-59 prom.
January 17, 2000)3) A petition for review of a CSC Resolution under Rule 45 with the
Court of Appeals, although an inappropriate remedy or wrong mode of appeal
pursuant to Circular No. 2-90 was reinstated. The Circular should be so interpreted
and applied as to attain, not defeat the ultimate purpose of the rules of procedure
to achieve substantial justice.(Romero v. Civil Service Commission, 276 SCRA 610, in
turn citing A-One Feeds, Inc.v. Court of Appeals et. al., 100 SCRA 590)4) A dismissal
of a petition by the Court of Appeals on the ground that the questioned orders
submitted by the petitioner were unsigned duplicate copies, not clearly legible
duplicate original certified true copy was reinstated by the Supreme Court.(Reyes, Jr.
v. Court of Appeals, et al. G.R. No. 136478, March 27, 2000) b.
The Supreme Court does not always suspend the Rules.
The payment of the docket and other legal fees within the prescribed period is both
mandatory and jurisdictional, Section 1 (c), Rule 50 of the Rules of Court provides:
Failure of the appellant to pay the docket and other fees as provided in Section 4 of
Rule 41 is a ground for the dismissal of the appeal. Indeed, it has been held that
failure of the appellant to conform with the rules on appeal renders the judgment
final and executory. Verily, the right to appeal is a statutory right and one who seeks
to avail of that right must comply with the statute or the rule. The bare invocation of
the interest of substantial justice is not a magic wand that will automatically
compel the Supreme Court to suspend procedural rules. Procedural rules are not to
be belittled or dismissed simply because their non-observance may have resulted in
prejudice to a partys substantive rights. Like all rules, they are required to be
followed except only for the
4 most persuasive of reasons when 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. Rules of procedure, especially those prescribing the

time within which certain acts must be done, have often been held as absolutely
indispensable to the prevention of needless delay sand to the orderly and speedy
discharge of business. x x x The reason for rules of this nature is because the
dispatch of business by courts would be impossible, and intolerable delays would
result, without rules governing practice. x x x Such rules are a necessary incident to
the proper, efficient and orderly discharge of judicial functions. T Rules may be
relaxed only in exceptionally meritorious cases. (Lazaro et al., v. Court of Appeals,
et al., G.R. No. 137761,April 6, 2000)c.
Reason for allowing suspension of the rules.
The rules on procedure are merely tools designed to facilitate the attainment of
justice. Strict adherence to procedural rules is not the end-all and be-all of litigation,
although strict adherence to procedural rules must at all times be observed.
Adjective law is not to be taken lightly, for without it, the enforcement of
substantive laws may not remain assured. Nevertheless, technical rules of
procedure are not ends in themselves, but primarily devised and designed to help in
the proper and expedient administration of justice. In appropriate cases therefore,
the rules may have to be so construed liberally in order to meet and advance the
cause of substantial justice. (Lao v. Court of Appeals, et al., G.R. No. 47013; Co v.
Court of Appeals,et al., G.R. No. 60647, and the Associated Anglo-American Tobacco
Corporation v. Court of Appeals, et al., G.R. Nos. 60958-59 prom. January 17,
2000)d.
Cases where the Rules of Procedure do not apply.
The Rules of Civil Procedure generally do not apply to land registration cadastral
and election codes, naturalization and implementing procedures except by analogy
or in a suppletory character and whenever practicable and convenient. Election
contests are subject to the Comelec Rules of procedure.(Barrosa v. Hon. Ampig Jr.,
etc., et al., G.R. No. 138218, prom. March 17, 2000)Examples:1) The suppletory
application of the non-forum shopping requirements under the Rules of Civil
Procedure to election cases does not automatically warrant the dismissal of the case
with prejudice. Reason: Strict application of the non-forum shopping rule would not
work to the best interest of the parties and the electorate. An election contest,
unlike an ordinary civil action, is clothed with public interest. The purpose of an
election protest is to ascertain whether the candidate proclaimed by the board of
canvassers is the lawful choice of the people. An election contest involves not only
the adjudication of private and pecuniary interests of rival candidates but
paramount to their claims is the deep public concern involved and the need of
dispelling the uncertainty over the real choice of the electorate. (Ibid.)2) The
appellate court could consider documents attached to the states brief in
anappealed naturalization case, even if not presented and offered as evidence in
the trial court as required under Sec. 34, Rule 132. The reason for the rule
prohibiting the admission of evidence not formally offered is to afford the opposite

party the chance to object to their admisibility. There is no denial of due process
because objections to the authenticity of the documents could have been made in
the briefs filed with the appellatecourt. (Chia v. Republic, et al., G.R. No. 127240,
prom. March 27, 2000)
6. What is the extent of judicial power ?
SUGGESTED ANSWER: It includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable.
(Article VIII, Section 1, 1987 Philippine Constitution)
7. What is a quasi-judicial function?
SUGGESTED ANSWER: A power that rests in judgment or discretion, so that it is of
judicial nature or character, but does not involve the exercise of functions of a
judge, or is conferred upon an officer other than a judicial officer. (Sandoval v.
Commission on Elections, etal., G.R. No. 133842, prom. January 26, 2000 )NOTES
AND COMMENTS: A quasi-judicial tribunal cannot ignore the requirements of
procedural due process in resolving petitions. (Ibid.)
CIVIL PROCEDURE, IN GENERAL
THE FLOW OF CIVIL PROCEDURE.
Civil procedure is basically a step by step activity which a student should master in
order to grasp the whole picture, as well the various interrelated subjects. This is so,
because certain procedures occur from time to time while the action or suit is being
heard. For example, different kinds of motions may be filed. Furthermore, certain
acts could be done only within certain reglementary periods which if not complied
with may result to denial by the court of prayers for relief .It is for these reasons the
Notes avoid using the conventional method of discussing the subject matter on a
"Rule by Rule, Section by Section" method. Instead it uses the procedural approach,
which tries to present, as far as practicable, the steps to be followed in the
prosecution or defense of causes of actions. The following outline may be referred
to as the "Flow of Civil Procedure," that should be mastered by the student in order
to have a thorough grasp of the interrelationships among the concepts discussed.
BEFORE FILING THE SUIT
A. In General: The criteria for invoking judicial process1. Actions in general
a. Is there a cause of action ?C
b. Does the right of action subsist ? Do the following exist ?
1) Estoppel
2) Laches

3) Prescription
4) Forum shopping
5) Res judicata
2. Are there available adequate reliefs and remedies?
a. Is there a need for provisional remedies ?
B. Who are the parties to a suit ?
1) Parties in general
2) Criteria for invoking judicial process
a. Threshold requirements
1) Legal capacity
2) Real party in interest
3) Locus standi
3) Joinder of parties
a. Kinds of parties
b. Joinder of initial parties
1) Compulsory joinder
2) Permissive joinder
c. Impleader
1) Third-fourth, etc. party
d. Special joinder devices
1) Class suit
2) Intervention
3) Interpleader
C. Determine application of doctrine of preconditions, prior resort, alternative
modes of dispute resolution,
1. Compromise
2. Katarunggang Pambarangay

3. Exhaustion of administrative remedies

4. Arbitration and alternative modes of dispute resolution
D. Selection of court
1. Different kinds of civil actions
a. Ordinary and special
b. In rem,in personam, quasi-in rem
c. Real, personal
d. Local and transitory
2. Hierarchy of courts
3. Jurisdiction
4. Venue
5. Summary procedure
E. Pleadings and motions
1. Pleadings in general
a. Formal Requirements
b. Manner of making allegations in pleadings
2. The complaint
a. Joinder of causes of action
1) Permissive
2) Compulsory
3. Filing and service of pleadings and other papers
4. Motions in general
a. Filing, service and hearing of motions
F. Depositions and discoveries
FILING OF THE ACTION.
A. Commencement of the action

B. Docket fees
C. Raffle of cases
AFTER FILING OF THE SUIT
A. Obtaining jurisdiction over parties
1. Summons in general
2. Methods of service
B. Motions that may be filed by the plaintiff
1. To withdraw complaint or to dismiss
2. To amend or supplement the complaint
AFTER SERVICE OF SUMMONS BUT BEFORE ANSWER
A. Plaintiffs notices, motions and others
1. To withdraw complaint
2. To amend or supplement the complaint
3. To declare in default
4 Opposition to defendant's various motions
B. Defendants motions and pleadings after service of summons but before answer
1. Motionsa. For bill of particulars
b. To expunge the complaint or portions thereof
c. To dismissd. For extension of time to file answer
e. Lift order of default
2. Pleadings
a. Answer
b. Counterclaim
c. Third-Party complain
d. Cross-claim
3. Others

a. Depositions and discoveries

b. Oppositions to plaintiff's various motions
AFTER DEFENDANT'S ANSWER
A. Plaintiff's motions and pleadings after answer
1. Motionsa. To withdraw complaint
b. To amend or supplement the complaint
c. To expunge the answer or any part
d. For judgment on the pleadings
e. For summary judgment
f. To set pre-trial
2. Pleadings
a. Reply
b. Answer to counterclaims
3. Others
a. Pre-trial brief
b. Depositions and discoveries
B. Defendant's motions and pleadings after answer
1. Motions
a. Oppositions to plaintiff's various motions
2. Others
a. Pre-trial brief
b. Deposition and discoveries
PRE-TRIAL
A. Plaintiff's motions
1. To present evidence ex-parte and render judgment
B. Defendant's motion

1. Motion to dismiss
C. Common motions
1. To postpone
2. For consolidation or severance
3. For trial by commissioner
E. Expanding the scope of the suit
1. Joinder of claims or causes of action
2. Joinder of parties
DEPOSITIONS AND DISCOVERIES
A. Depositions
B. Interrogatories to parties
C. Admission by adverse party
D. Production or inspection of things or documents
E. Physical and mental examination of persons
TRIAL.
A. Trial
1. Order of trial
B. Common motions
1. To postpone
2. To amend to conform to evidence
AFTER TRIAL, BEFORE JUDGMENT
A. Common motion
1. To submit memorandum
B .Defendants motion
2. For judgment on demurrer to evidence
JUDGMENTAFTER JUDGMENT

A .Common motions
1. For reconsideration
2. For new trial
B. Others
1. Notice of appeal
2. Petition for relief from judgment

APPEAL
A. In general
1. Preliminary concepts
2. Modes and periods of appeals
B. Appeals from judgments or final orders of municipal trial courts
1. In general
2. Procedure for appeals of judgments of municipal trial courts in exercise of original
jurisdiction
3. Procedure for appeals of decisions of municipal trial courts in exercise of
delegated jurisdiction
C. Appeals from decisions of the Regional Trial Courts
1. In general
2. Procedure for ordinary appeals of decisions of the Regional Trial Court in exercise
of its original jurisdiction to the Court of Appeals
4. Petition for review from decisions of the Regional Trial Court in the exercise of its
appellate jurisdiction to the Court of Appeals
5. Petition for certiorari to the Supreme Court
D. Appeals from decisions of the Court of Tax Appeals and quasi-judicial agencies
1. In general
2. Petition for review to the Court of Appeals
3. Petition for certiorari to the Supreme Court

E. Appeals from decisions of the Court of Appeals

1. In general
2. Appeal by certiorari to the Supreme Court
EXECUTIONS AND SATISFACTION OF JUDGMENTS
A. In general
1. Concepts
2. Kinds of execution
a. Execution as a matter of right
b. Discretionary execution
3. How execution is effected, in general
4. Properties exempt from execution
B. Procedure for execution
1. In case of death of party
2. For judgments for money
3. Of judgment for specific act
5.Of special judgments
C. Execution sales
1. Sales on execution
2. Conveyance of property sold on execution
3. Redemption of property sold on execution
D. Remedies of judgment creditor in aid of execution
E. Satisfaction of judgment
BEFORE FILING THE SUIT IS THERE A CAUSE OF ACTION ?
The primary criteria that must be complied with before filing a suit is the existence
of a cause of action by the suitor against the adverse party. Without a cause of
action the suit must fail because the complaint would be susceptible to the
threshold defense of a motion to dismiss or the lack of cause of action could be

raised in the answer. The two defenses against lack of a cause of action, are
therefore:
a. A motion to dismiss, or
b. As an affirmative defense in an answer. If the lack of cause of action is apparent
on the face of the complaint or other initiatory pleading, then a motion to dismiss
may be filed on the ground,
That the pleading asserting theclaim states no cause of action.
(Sec. 1 [g]. Rule 16, ROC) On the other hand if the ground is
not raised in a motion to dismiss it
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.
(1st par., Sec. 6, Rule 16, ROC)Of course, even if the lack of cause of action is not
apparent on the face of the complaint or initiatory pleading, but the same is
pleaded in an answer then failure on the part of complainant (the plaintiff) to show
the existence of a cause of action during the course of thetrial would ultimately lead
to a dismissal of his complaint.
What are the elements of a cause of action ?
SUGGESTED ANSWER:
The elements of a cause of action are:
a. A legal right in favor of the plaintiff by whatever means and under whatever law it
arises or it creates; b. A correlative obligation on the part of the named defendant to
respect or not to violate this right;
c. An act or omission on the part of such defendant violative of the right of the
plaintiff or constituting a breach of the obligation of the defendant to the plaintiff
(Republic PlantersBank, et al., v. IAC, et al., 131 SCRA 639),for which the latter may
maintain an action for recovery of damages. (Leberman RealtyCorporation, et al, v.
Typingco, et al., G.R. No. 126647, prom. July 29, 1998) NOTES AND COMMENTS:
a. Short definition of cause of action.
A cause of action is the fact or combination of facts which affords a party a right to
judicial interference in his behalf. It is the reason why the litigation has come about.
(Asset Privitization Trust v. Court of Appeals, et al., G.R. No. 81024, prom. February
3. 2000)

Distinguish cause of action from right of action.

SUGGESTED ANSWER:
a. Cause of action consists of a right belonging to one person and a wrongful act by
another which violates that right WHILE right of action is the right to commence and
maintainan action;
b. Cause of action is a formal statement of the operative facts which give rise to
such remedial right WHILE right of action is a remedial right belonging to some
person;
c. Cause of action is a matter of right and depends on substantive law WHILE right
of action is a matter of statement and is governed by the law on procedure.
d. A cause of action is not affected by the running of the statute of limitations,
estoppel, etc., WHILE a right of action is so affected.

The owner of an estate fenced his property, as a result of which the tenants of the
apartment adjoining the property lost their passageway. There was no right of way
enjoyed by the tenants. Consequently, the tenants left. Could the apartment owner
recover damages from the estate owner ?
SUGGESTED ANSWER: No.
The mere fact that the apartment owner suffered losses does not give rise to a right
to recover damages. To warrant the recovery of damages there must be both a right
of action for a legal wrong inflicted by the defendant and damage resulting to the
plaintiff therefrom. Wrong without damage, or damage without wrong, does not
constitute a cause of action, since damages are merely part of the remedy for the
injury caused by a breach or a wrong. In order that a plaintiff may maintain an
action for the injuries of which he complains he must establish that such injuries
resulted from a breach of duty which the defendant owed to the plaintiff, a
concurrence of injury to the plaintiff and legal responsibility by the person causing
it.(Sps. Custodio, et al., v. Court of Appeals, et al., 253 SCRA 483) NOTES AND
COMMENTS:
a. Injury, defined
. The illegal invasion of a legal right .(BPI Express Card Corporation v. Court of
Appeals, et al., G.R. No. 120639, prom. September 25, 1998)
b. Damage, defined
. The loss, hurt or harm which results from the injury, damages are the recompense
or compensation awarded for the damage suffered. .(BPI Express Card Corporation

v. Court of Appeals, et al., G.R. No. 120639, prom. September 25, 1998) Atty.
Ricardo was the holder of a complimentary credit card issued by BPI Express Card
Corporation with a credit limit of P3,000.00 which was subsequently increased to
P5,000.00. The application for credit card privileges stated that BPI could
automatically suspend a card whose billing has not been paid for more than thirty
days. Oftentimes he exceeded the credit limit and BPI tolerated this as well as his
payment of his account by checks. In October, 1989 he was not able to pay his
account amounting to P8,987.84, but BPI demanded from him a check of
P15,000.00 which would include his future bills, and was threatening to suspend his
credit card. Atty. Ricardo issued a December 15, 1989 postdated check in the
amount of P15,000.00 which was received by an employee of BPI on November 23,
1989.On November 28, 1989 BPI sent a letter to Atty. Ricardo by ordinary mail
informing him of the temporary suspension of his credit card privileges and unless
he settles his account within 5 days from receipt of the letter, his membership will
be permanently cancelled. There is no showing that Atty. Ricardo received the letter
before December 8, 1989.Confident that he had settled his account with the
issuance of the postdated check, Atty. Ricardo invited some guests on December 8,
1989 and entertained them at Cafe Adriatico. When he presented his credit card for
the bill amounting to P735.32, said card was dishonored. One of the guests, Mary
Ellen, paid the bill using a Unibank card. Under the circumstances, is Atty. Ricardo
entitled to damages as a result of the social humiliation and embarrassment he
suffered ?
SUGGESTED ANSWER: No.
It was Atty. Ricardo's failure to settle his obligation which caused the suspension of
his credit card and subsequent dishonor at Cafe Adriatico. He can not now pass the
blame to BPI for not notifying him of the suspension of his card. As shown by the
facts, the application contained the stipulation that BPI could automatically suspend
a card whose billing has not been paid for more than thirty days. As a matter of fact,
as early as 28 October 1989, BPI could have suspended Atty. Ricardo's card outright.
Instead it allowed him to use his card for several weeks. Atty. Ricardo was even
notified of the impending suspension of his credit card, which he was presumed to
have received because of the disputable presumption that letters duly directed and
mailed were received in the regular course of mail
. (BPI Express Card Corporation v. Court of Appeals, G.R. No. 120639, prom.
September 25, 1998)
. Fernando filed a complaint for recovery of property against the children of
Remigio. The complaint alleged that Fernando bought the property from Alejandro,
but was unable to effect the immediate transfer of title in his favor in view of his
foreign nationality at the time of the sale. As an assurance of his good faith
Alejandro turned over the owner's

duplicate copy of the title to Fernando and in addition executed a lease contract in
favor of Fernando for 40 years. Subsequently, Alejandro sold the property to his
brother Remigio with the understanding that the property is to be held in trust for
Fernando and that Remigio would execute the document of sale in favor of Fernando
upon the latter's demand. Another lease contract, this time between Fernando and
Remigio was executed in favor of Fernando to safeguard his interest over the
property. No rents were ever paid by Fernando nor were the redemands made upon
him. Remigio was killed and during his wake, Fernando reminded hischildren of the
agreement and they promised to transfer the subject property to Fernando whoby
this time has acquired Filipino citizenship by naturalization. The children never
made good their promise and in fact they transferred the property in their names.
Upon receipt of the complaint the defendants filed a motion to dismiss claiming
among others that the complaint states no cause of action. At the time of the filing
of the complaint Alejandro was already dead. Rule on the motion.
SUGGESTED ANSWER: Motion denied.
Fernando relies simply on the allegation that he is entitled to the property by virtue
of a sale between him and Alejandro who is now dead. Obviously, Fernando will rely
on parol evidence which, under the circumstances obtaining, cannot be allowed
without violating the "Dead Man's Statue" found in Sec. 23, Rule 130 of the Rules of
Court. Clearly then, from a reading of the complaint itself, the annexes attached
thereto and relevant laws and jurisprudence, the complaint indeed does not spell
out any cause of action.(Tan, et al., v. Court of Appeals, et al., G.R. No. 125861,
prom. September 9, 1998)
DOES THE RIGHT OF ACTION STILL SUBSIST ?
ESTOPPEL

What is meant by the doctrine of estoppel ?

SUGGESTED ANSWER:
An admission or representation is rendered conclusive upon the person making it
and cannot be denied or disproved as against the person making it, and cannot be
denied or disproved as against the person relying thereon. A party having
performed affirmative acts upon which another person based his subsequent
actions, cannot therefore refute his acts or renege on the effects of the same, to
prejudice of the latter. (Ducat v. Court of Appeals, et al., G.R. No. 119652, prom.
January 20, 2000; Ducat v. Sheriff Carpio, A.M. No. 8-00-1358, prom. January 20,
2000)

NOTES AND COMMENTS:

a. Example of estoppel.
The trial court referred the matter of a computation of the excess payments to SGV.
The Manifestation and Urgent Motion to Set Parameters of Computation filed by the
petitioner is indicative of his conformity with the order of the referral. If the
petitioner thought that the order was wrong, he should have taken recourse to the
Court of Appeals. The petition cannot be allowed to make a mockery of judicial
processes, by changing his position from one of agreement to disagreement, to suit
his needs. If the parties acquiesed in submitting an issue for determination by the
trial court, they are estopped from questioning the jurisdiction of the same court to
pass upon the issue. (Ibid.)Jurisdiction over the person must be seasonably raised,
i.e., that it is pleaded in a motion to dismiss or by way of an affirmative defense.
Voluntary appearance shall be deemed a waiver of this defense. However, assertion
of affirmative defenses shall not be construed as estoppel or waiver of the defense
of jurisdiction over the person of the defendant. Estoppel by jurisdiction must be
unequivocal and intentional. (Millenium Industrial Commercial Corporation v.
tan,G.R. No. 131724, prom. February 28, 2000 citing La Naval Drug Corporation v.
Court of Appeals, et al., G.R. No. 127480, prom. February 28, 2000)
LACHES

What is laches ?
SUGGESTED ANSWER:
Laches is negligence or omission to assert a right within a reasonable time,
warranting the presumption that the party entitled to assert it has either abandoned
or declined to assert it.
a.Essential elements of laches are:
(1) conduct on the part of the defendant, or of one under whom he claims, giving
rise to the situation complained of;
(2) delay in asserting complainants right after he had knowledge of the defendants
conduct and after he has an opportunity to sue;
(3) lack of knowledge or notice on the part of the defendant that the complainant
would assert the right on which he bases his suit; and
(4) injury or prejudice to the defendant in the event relief is accorded to the
complainant. (Maestrado, etc. et al., v. Court of Appeals, etc. et al., G.R. No.

133345;Maestrado, et al. v.. Roa, Jr., et al., G.R. No. 133324, prom. March 9, 2000)
b.
No absolute rule on what constitute laches.
It is a creation of equity and applied not really to penalize neglect or sleeping upon
ones rights but rather to avoid recognizing a right when to do so would result in a
clearly inequitable situation. The question of laches, we said, is addressed to the
sound discretion of the court and each case must be decided according to its
particular circumstances. (Villanueva-Mijares, et al., v. Court of Appeals, et al., G.R.
No. 10892, prom. April 12, 2000 citing Chavez v. Bonto-Perez, 242 SCRA 73, 80)The
doctrine of laches or stale demands does not apply against minors whose property
was held in trust by predecessor of persons invoking it. (Ibid.)
c. Prescription distinguished from laches:
1) Prescription is concerned with the fact of delay WHILE laches is concerned with
the effect.
2) Prescription is a matter of time WHILE laches is principally a question of the
inequity of permitting a claim to be enforced, this inequity being founded on some
change in the condition of the party or the relation of the parties.
3) Prescription is statutory WHILE laches is not. Laches applies in equity WHILE
prescritpion applies at law.3) Prescription is based on fixed time, while laches is not.
(Cutanda, et al., v.Heirs of Cutanda, et al., G.R. No. 109215, prom. July 11, 2000
citing Cameclang v.Baun, 208 SCRA 179)d.
No laches if case filed within prescrptive period.
The doctrine of laches is inapplicable where the action was filed within the
prescriptive period provided by law. Thus, laches does not apply in a case where
petitioners possession of the subject lot has rendered their right to bring an action
for quieting of title imprescriptible and, hence, not barred by laches. Moreover,
since laches is a creation of equity, acts or conduct alleged to constitute the same
must be intentional and unequivocal so as to avoid injustice. Laches operates not
really to penalize neglect or sleeping on ones rights, but rather to avoid recognizing
a right when to do so would result in a clearly inequitable situation. (Maestrado, etc.
et al., v. Court of Appeals, etc. et al.,G.R. No. 133345; Maestrado, et al. v.. Roa, Jr., et
al., G.R. No. 133324, prom. March 9, 2000)
PRESCRIPTION

Give certain instances when actions prescribe.

SUGGESTED ANSWER:

a. An action for reconveyance of a parcel of land based on implied or constructive

trust prescribes in 10 years, the point of reference being the date of registration of
the deed or the date of the issuance of the certificate of title of the property.
(Villanueva Mijares, et al., v. Court of Appeals, et al., G.R. No. 108921, prom. April
12, 2000 citing Vda. de Cabrera v. Court of Appeals, 267 SCRA 339, 353 (1997),and
Sta. Ana, Jr. v. Court of Appeals, 281 SCRA 624, 629) b. A suit for reformation of an
instrument may be barred by lapse of time. The prescriptive period for actions
based upon a written contract and for reformation of an instrument is ten (10) years
under Article 1144 of the Civil Code. Prescription is intended to suppress stale and
fraudulent claims arising from transactions where facts had become so obscure
from the lapse of time or defective memory. (Rosello-Bentir, et al., v. Hon. Leanda,
etc., et al., G.R. No.128991, prom. April 12, 2000) NOTES AND COMMENTS:
a.Two kinds of prescription:
1) Acquisitive prescription or the the acquisition of a right by the lapse of time.
2) Extinctive prescription or the loss of a right of action y the lapse of time.
(Cutanda, et al., v. Heirs of Cutanda, et al., G.R. No. 109215, prom. July 11, 2000)
What is the prescriptive period for the availment of the remedies of accion
publiciana or accion reinvendicatoria ?
SUGGESTED ANSWER:
The remedies of accion publiciana or reinvendicatoria must be availed of within ten
(10) years from dispossession. This is so, because under Art. 555(4), of the Civil
Code the real right of possessions is lost after the lapse of 10 years. (Cutanda, et al.,
v.Heirs of Cutanda, et al., G.R. No. 109215, prom. July 11, 2000)
Give instances where actions do not prescribe.
SUGGESTED ANSWER:
a. Where a person is in possession, his action to quiet title does not prescribe.
Generally, an action for reconveyance based on an implied or constructive trust,
such as the instant case, prescribes in 10 years from date of issuance of decree of
registration. However, this rule does not apply when the plaintiff is in actual
possession of the land. b. An action for the nullification of a Certificate of Sale could
not be instituted as this is tantamount to invalidating a privious declaration of the
validity of an auction sale. The Certificate of Sale is just a certification of what was
done during the auction sale. (Heirs of Seraspi v. Court of Appeals, et al., G.R. No.
135602, prom. April 28, 2000) NOTES AND COMMENTS: An action for reconveyance
of a parcel of land based on implied or constructive trust prescribes in ten (10)
years, the point of reference being the date of registration of the deed or the date of
the issuance of the certificate of title over the property, but this rule applies only
when the plaintiff or the person enforcing the trust is not in possession of the

property, since if a person claiming to be the owner thereof is in actual possession

of the property, as the defendants are in the instant case, the right to seek
reconveyance, which in effect seeks to quiet title to the property, does not
prescribe.The reason for this is that 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, the reason for the rule
being, that his undisturbed possession gives him a continuing right to seek the aid
of a court of equity to ascertain and determine the nature of the adverse claim of a
third party and its effect on his own title, which right can be claimed only by one
who is in possession The action for recovery of title or possession of real property or
an interest therein which can only be brought within ten (10) years after the cause
of action has accrued is acquisitive, not extinctive prescription. For extinctive
prescription, the applicable law is Article 1141 of the Civil Code which provides that,
real actions over immovables prescribe after thirty (30) years, without prejudice to
what is established for the acquisition of ownership and other real rights by
prescription. (Heirs of Seraspi v. Court of Appeals, et al., G.R. No. 135602, prom.
April 28,2000)Moreover, if the plaintiff in an action for quieting of title is in
possession of the property being litigated, such action is imprescriptible. One who is
in actual possession of a 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 because his undisturbed possession gives him acontinuing right to seek the
aid of the courts to ascertain the nature of the adverse claim and itseffects on his
title. (Maestrado, etc. et al., v. Court of Appeals, etc. et al., G.R. No.
133345;Maestrado, et al. V.. Roa, Jr., et al., G.R. No. 133324, prom. March 9, 2000)
LAW OF THE CASE
What is the law of the case ?
SUGGESTED ANSWER:
Under the law of the case concept,
a. whatever is once irrevocably established as the controlling legal principle or
decision
b. continues to be the law of the case between the same parties in the same case,
c. whether correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the court. 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 economyas well as protection of the time and interests of the litigants. x x x
(Ducat v. Court of Appeals,et al., G.R. No. 119652, prom. January 20, 2000; Ducat v.
Sheriff Carpio, A.M. No. P-00-1358, prom. January 20, 2000)

NOTES AND COMMENTS: It may be stated as a rule of general application that,

where the evidence on a second or succeeding appeal is substantially the same as
that on the first or preceding appeal, all matters, questions, points, or issues
adjudicated on the prior appeal are the law of the case on all subsequent appeals
and will not be considered or readjudicated therein. (5 C.J.S. 1267) (Italics
supplied)As a general rule a decision on a prior appeal of the same case is held to
be the law of the case whether that decision is right or wrong , the remedy of the
party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77)
(Italics supplied)Questions necessarily involved in the decision on a former appeal
will be regarded as the law of the case on a subsequent appeal, although the
questions are not expressly treated in the opinion of the court, as the presumption
is that all the facts in the case bearing on the point decided have received due
consideration whether all or none of them are mentioned in the opinion. (5 C.J.S.
1286-87) (Italics supplied)
LITIS PENDENTIA
What is meant by litis pendentia as a ground for dismissal of actions ?
SUGGESTED ANSWER:
Litis pendentia
is a Latin term which literally means " a pending suit." (Feliciano v. Court of Appeals,
et al., G.R. No. 123293, prom. March 5, 1998)It is variously referred to in some
decisions as lis pendens and auter action pendant. (Feliciano, supra). While it is
normally connected with the control which the court has on a property involved in a
suit during the continuance proceedings (Feliciano), it is more interposed as a
gound for the dismissal of a civil action pending in court. (Sec. 1, par. [e], Rule 16,
ROC).
Litis pendentia
as a ground for the dismissal of a civil action refers to the situation wherein another
action is pending between the same parties for the same cause of action (Sec. 1[e],
Rule 16, ROC), and that the second action becomes unnecessary and vexatious.
NOTES AND COMMENTS:
a.For litis pendentia to be invoked the concurrence of the following requisites are
necessary:
1) identity of parties or at least represention of the same interest in both actions;
2) identity of rights asserted and reliefs prayed for, the reliefs must be founded on
the same facts and the same basis; and3) identity in the two cases should be such
that any judgment that may be rendered the other action will, regardless of which

party is successful, amount to res judicata on the other action under consideration.
(Feliciano v. Court of Appeals, et al., G.R. No. 123293, prom. March 5, 1998; Tourist
Duty Free Shop,Inc. v. Sandiganbayan,et al.,G.R. No. 107395, prom. January 26,
2000; University Physicians Services, Inc. v. Court of Appeals, et al., G.R. No.
115045, prom. January 31, 2000)It has been held that where a litigant sues the
same party against whom the same 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 other; and a final judgment in one would
constitute res judicata and thus, would cause the dismissal of the rest. (Quinsay
v.court of Appeals, et al., G.R. No. 127058, prom. August 31, 2000) b.
Do not confuse litis pendentia (Sec. 1 [e], Rule 16, ROC) as a ground for dismissal of
actions from res judicata (Sec. 1 [f], Rule 16, ROC)
Litis pendentia
as a ground for dismissal distinguished from res judicata as a ground for dismissal:
In litis pendentia
there is no judgment yet as both of the cases are still pending WHILE in
res judicata there is already a judgment on the first case
c. Pendency of another case not automatic litis pendentia.
Litis pendentia
does not exist solely because other action (s) is pending between the same parties.
It must be shown that the institution of the later action(s) was unnecessary and
intended to harass the defendant.(University Physicians Services, Inc. v. Court of
Appeals, et al., G.r. No. 115045, prom. January31, 2000)
20.
The MCTC rendered a Decision granting the ejectmnt suit filed by the plaintiff
against the defendants over a parcel of land claiming that the defendants were
occupying the land upon his mere tolerance. While an appeal was pending before
the RTC, plaintiff filed a motion for immediate execution of the MCTC judgment
which was granted. The writ of demolition will be executed over the house owned by
the defendants. However, the Court of Appeals later reversed the RTC order
granting the execution pending appeal, which was affirmed by the Supreme Court.
Meanwhile, the defendants also filed before the RTC a new action for quieting of title
involving the same parcel of land but not the house. The defendants also filed
before the RTC a new action for quieting of title involving the same property. Should
the action for quieting of title justify the suspension of the ejectment suit ? Explain.

SUGGESTED ANSWER: Yes, on equitable considerations as an exception to the

general rule that a pending civil action involving ownership of the same property
does not justify the suspension of the ejectment proceedings. The ejectment suit is
one of unlawful detainer and not of forcible entry. The ejetmnet of the defendants
would mean a demolition of their house, a matter that is likely to create confusion,
disturbance, inconveniences and expenses. Necessarily, the affirmance of the MCTC
decision would cause the plaintiff to go through the whole gamut of enforcing it by
physically removing the defendants from the premises. The plaintiff is claiming
ownership only of the land, not of the house. Needlessly, the litigants as well as the
courts will be wasting much time and effort by proceeding at a state wherein the
outcome is at best temporary, but the result of enforcement is permanent, unjust
and propbably irreparable. (Amagan, et al., v. Marayag, et al., G.R. No.138377,
prom. February 28, 2000) NOTES AND COMMENTS: In the above case the Suprem
Court considered the prevailing exceptional circumstances.
As a general rule, a pending civil action involving ownership for the same property
does not justify the suspension of ejectment proceedings
Temperance Union, Inc. v. Abiertas House of Friendship, Inc. et al., G.R. No. 125571,
prom.July 22, 1998)
RES JUDICATA
22.
What is res judicata as a ground for a motion to dismiss ?

SUGGESTED ANSWER: It posits that when a right of fact has been judicially tried
anddetermined by a court of competent jurisdiction, or an opportunity for trial has
been given, the judgment of the court, so long as it remains unreversed, should be
conclusive upon the partiesand those in privity with them in law or estate. (De
Knecht, et al. v. Court of Appeals, et al.,G.R. No. 108015 and De Knecht, et al., v.
Hon. Sayo, et al., G.R. No. 109234, prom. May 20,1998)Example of
res judicata
. Where a party could have objected to the registration of therealty in question but
failed to do so,
res judicata
had set in. Reason: a land registration cause isan action
in rem

binding upon the whole world. (Villanueva-Mijares, et al., v. Court of Appeals,et al.,
G.r. No. 921, prom. April 12, 2000)NOTES AND COMMENTS:a.
Aspects of
res judicata
.
The two aspects of
res judicata
are:First: The effect of a judgment as a bar to the prosecution of a second action
uponthe same claim, demand or cause of action.Second: The second precludes the
relitigation of a particular fact or issue inanother action between the same parties or
their successors-in-interest, on a differentclaim or cause of action. (Sps. Barretto v.
Court of Appeals, et al., G.R. No. 110259, prom. February 3,000) b.
Requisites of
res judicata
as a ground for a motion to dismiss :
1) The judgment sought to bar the new action must be final;2) The decision must
have been rendered by a court having jurisdiction over thesubject matter and the
parties;3) The disposition of the case must be a judgment or on the merits.4) There
must be between the first and second action, the three identities:a) Identity of
parties, b) Identity of subject matter, andc) Identity of causes of action. (Republic,
etc. v. Court of Appeals, et al.,G.R. No. 103412, prom. February 3, 2000)c.
Judgment on the merits.
A judgment which determines the rights and liabilities of the parties based on he
ultimate facts as disclosed by the pleadings or issues presented for trial.It is not
necessary that there should haveen a trial, actual hearing or arguments on the facts
of thecase. For as long as the parties had full legal opportunity to be heard on their
respective claimsand contentions, the judgment is on the merits. (Republic, etc., v.
Court of Appeals, et al., G.R. No. 103412, prom. February 3, 2000)d.
Substantial identity of parties only required.
For purposes of
res judicata
, onlsubsantial identity is required and not absolute identity. Parties in both cases
ned not be physically identical provided hat there is privity between the parties or

their successors-in-interest subsequent to the commencment of the previous cause

of action, litigating for the samething, title, or capacity. (Republic, etc. v. Court of
Appeals, et al., G.r. No. 103412, prom.February 3, 2000)e.
Res judicata
is not defeated by a minor difference of parties

, as it does not requireabsolute but only subsantial identity of parpties. But there is
substantial identity only when theadditional party acts in the same capacity or is
in privity with the parties in the former action.Co-owners are not parties
inter se
in relation to the property owned in comon. A subsequentaction by a co-heir, who
did not join the earlier dismissed action for recovery of property, shouldnot be
barred by prior judgment. Neiher will conclusiveness of judgmnt apply because
there wasno identity of parties. (Nery, et al., v. Leyson, t al., G.R No. 139306, prom.
August 29, 2000)f.
No
res judicata
upon parties who did not sign the compromise agreement
becausethere is no identity of parties. A judgmnt upon a compromise has all the
force and effect of anyother judgment, hence conclusive only upon parties thereto
and their privies. (Golden Donuts,Inc., et al., v. NLRC, et al, G.R. Nos. 113666-68,
prom. January 19, 2000)g.
No
res judicata
where causes of action are different .
The causes of action aredifferent between an unlawful detainer case and another
case which concenrns the validity of the
17

execution proceedings, specifically the validity of the auction sale of properties to

satisfy themoney judgmntin the ejectmnt case. The two cases fail the test of
identity of causes of action, i.e.whether the same facts or evidence would support
and establish the causes of action in each case.(Vda. de Salanga, et al., v. Hon.
Alagar, etc, et al., G.R. No. 134089, prom. July 14, 2000)
***23.
Spouses de la Cruz ownd a residential lot which was leased to Dominga where she
built a two-story house where her family lived. The lessess religiously paid her
monthlylease ental undtil June 1979 when the lessor stopped collecting the same. In
June 1979 Theresa informed Dominga that she purchased the lot from the
previousowners. She wanted to take immediate possession of the propertysince she
had no other residential lot and she intended to make use of the lot for the
construction of her own house.Theresa gave Dominga three (3) months notice to
vacate and to demolish the improvementswhich the latter had built on the lot. As a
result of Domingas failure to vacate, Theresa filed an ejectment case based onher
alleged need for the property. The court dismissed the case and held that the
defendant has not been in arrears in the payment of the monthly rentals and noted
that the plaintiff never tried to collect. That decision had long become final and
executory. In 1982, Theresa filed a second ejectment case, this time against Almario
who succeeded his mother Dominga. The case was again dismissed as the rentals
up to and including February 1982 had been paid in full. The decision had also
become final and executory. In 1989, Mariano, the new owner of the property filed
another ejectment case against Almario insisting the same premises subject of the
first two ejectment cases. Almario again prevailed. In 1992, Mariano filed the fourth
ejectment suit alleging that he is lwasing the property to Almario, that the lessee
has violated the terms of the lease agreement by not paying rentals since
December, 1987 which has accunulated to P17,564.45. That he has made several
demands upon Almario to pay his arrears and to vacate the premises the latest of
which is through a January 16, 1992 letter. Almario is now raising the doctrine of res
judicata contending that this latest ejectment suit is barred by the final and
executory decisions in previous cases. Rule on Almariosdefense.
SUGGESTED ANSWER
:
There is no
res judicata
because of the lack of identity of causes of action between the latest and previous
cases.The first ejectment case had for a cause of action based on the need for the
premises. Thesecond ejectment case involved a different cause of action, that is, for
non-payment of rentals upto February 1982. The third case had for cause of action

the need for the premises and non- payment of rentals from Novembefr 1987 up to
May 1988. In the latest ejectment suit the causeof action is the non-payment of
rentals from December 1987 accumulating to P17,064.65.Clearly, the cause of
action and the circumstances present in the instant case are not thesame but differ
markedly from those in previous suits cited. Reliance on the doctrine of
res judicata
is misplaced. (Siapian v. Court of Appeals, et al., G.R. No. 11928, prom. March
1,2000)

24
. Bachrach Corporation entered into two lease contracts with the
PhilippineGovernment, then under the control and management of the Director of
Lands, for a term of 99 years, the first lease to expire 19 June 2017 and the other on
14 February 2018. During the Aquino administration, the management and control
of the entire Port Area wastransferred to the Philippine Ports Authority (PPA), which
forthwith issued a memorandumincreasing the rental rates of Bachrach by
1,500%.As a result of Bachrach's refusal to pay, PPA instituted and ejectment suit
whichresulted to a decision in its favor. An appeal to the RTC proved unavailing for
Bachrach aswell as a subsequent petition for review filed with the Court of Appeals.
Bachrach then sought for a reconsideration of the Court of Appeals' decision.During
the pendency of the motion for reconsideration Bachrach filed a complaint with the
Manila RTC for refusing to honor a compromise agreement said to have been
perfected between Bachrach and PPA that superseded the ejectment case.
Bachrach prayed for specific performance. PPA sought the dismissal of the specific
performance case on the ground of pendencyof another action between the same
parties for the same cause. Decide.
18

SUGGESTED ANSWER: PPA's motion should be denied. There is no identity of subject

matter and causes of action between the unlawful detainer case and the specific
performance case.In the unlawful detainer case, the subject matter is the contract
of lease between the parties while the breach thereof, arising from Bachrach's nonpayment of rentals, constitutes thesuit's cause of action.In the specific performance
case, the subject matter is the compromise agreementallegedly perfected between
the same parties while he case of action emanates from the averredrefusal of PPA to

comply therewith. (Bachrach Corporation v. Court of Appeals, et al., G.R. No.128349,

prom. September 25, 1998)
***25.
What are the concepts of res judicata ?

SUGGESTED ANSWER:

a. Bar by former judgment;

b. Conclusiveness of judgment. (Roxas v. Galindo, 108 Phil. 587)

NOTES AND COMMENTS:

***
a.
The concept of bar by former judgment
:

Assuming that the court whichrendered the judgment has jurisdiction, said
judgment is,1) with respect to the matter directly adjudged,2) or as to any other
matter that could have been raised in relation thereto,3) conclusive between the
parties and their successors in interest by titlea) subsequent to the commencement
of the action or special proceeding, b) litigating for the same thing and under the
same title and in the samecapacity. (Sec. 47 [b], Rule 39, ROC arrangement and
numbering supplied)There is "bar by prior judgment" when, between the first case
where the judgment wasrendered, and the second case which is sought to be
barred, there is identity of parties, subjectmatter and cause of action.The judgment
in the first case constitutes an absolute bar to the subsequent action.It is final as to
the claim or demand in controversy, including the parties and those in privity with
them, not only as to every matter which was offered and received to sustain or
defeat the claim or demand, but to any other admissible matter which might have
been offeredfor that purpose and of all matters that could have been adjudged in
that case. (ZansibarianResidents Association v. Municipality of Makati, 135 SCRA
240)

b.
Example of bar by former judgment
: A judgment rendered upon a promissory noteis conclusive as to the validity of the
instrument and the amount due upon it, although it besubsequently alleged that
perfect defenses actually existed of which no proof was offered, suchas forgery,
want of consideration or payment.If such defenses were not presented in the action
and established by competent evidence,the subsequent allegation of their existence
is of no legal consequence, The judgment isconclusive, so far as future proceedings
a law are concerned, as though the defenses never existed
.
(Penalosa v. Tuason, 22 Phil. 303)
***
c.
Concept of conclusiveness of judgment:
That only is deemed to have beenadjudged in a former judgment or final order
which appears upon its face to have been soadjudged, or which was actually and
necessarily included therein or necessary thereto areconclusive between the
parties. (Sec. 47 [c], Rule 47, ROC)The rule of conclusiveness of judgment precludes
the relitigation of a particular fact or issue in another action between the same
parties based on a different claim or cause of action.The judgment in the prior
action operates as estoppel only as to those matters in issue or pointscontroverted,
upon the dtermination of which the finding of judgment was rendered. The
previopus judgment is conclusive in the second cased only as to those matters
actually anddirectly controverted and determined and not as to matters merely
involved therein. (RizalSurety & Insurance Company v. CA, et al., G.R. No. 112360,
prom. July 18, 2000)

d.
Examples of conclusiveness of judgment
: In an action to recover severalinstallments due and unpaid on a promissory note
without an acceleration clause, the judgmentdeclaring the promissory note to be
genuine is conclusive between the parties or their successors-in-interest in a
subsequent action to recover succeeding installments due and unpaid. (Penalosav.
Tuazon, 22 Phil. 303

)
***
The negligence of the shipping line which issue had already been passed upon in
acase filed by one of the insurers, is conclusive and can no longer be relitigated in a
similar case

a.
Summons, defined.
Summons is the means by which the defendant in a case is notifidof the existence
of a case against him and, thereby, the court is confrred jurisdiction over the person
of the defendant. (Millenium Industrial Commercial corporation v. Tan, G.R.
no.131724, prom. February 28, 2000) b.
Exception or instance where service of summons is not for the purpose of obtaining
jurisdiction:
Extraterritorial service of summons to non-resident defendant where theaction
affects the personal status of the plaintiff, or the subject of the defendant's property
in thePhilippines. (Perkins v. Dizon, 69 Phil. 186) The purpose is to comply with due
process.
METHODS OF SERVICE OF SUMMONS
METHODS OF SERVICE OF SUMMONS.
a. Personal

b. Substitutedc. Service by publication1) Resident defendant2) Non-resident

defendant
120.
How is personal service of summons effected ?
SUGGESTED ANSWER:
Whenver practicable, the summons shall be served byhanding a copy thereof to the
defendant in person, or, if he refuses to receive and sign forit, by tendering it to
him.

(Sec. 6, rule 14, ROC)

***121.
How is substituted service of summons made ?
SUGGESTED ANSWER:
If, for justifiable causes, the defendant cannot be servedwithin a reasonable time as
provided in the preceding section, service may be effecteda) by leaving copies of
the summons at the defendants residence with some personof suitable age and
discretion then residing therein, orb) by leaving the copies at defendants office or
regular place of business with somecompetent person in charge thereof.
(Sec. 7, Rule 14, ROC arrangment supplied) NOTES AND COMMENTS:a.
Modes of service strictly followed
in order that the court may acquire jurisdictionover the person. Thus, it is only when
the defendant cannot be served personally withinareasonable time that
substituted service may be allowed.Impossibility of prompt, personal service should
be shown by stating in the proof of service that efforts were made to find the
defenant personally and that said efforts failed, hencethe resort to substituted
service. Failure to faithfully, strictly, and fully comply with therequirements of
substituted service renders said service ineffective.For substituted service to be
valid, the summons should be left in the defendantsresidenc with some person of
suitable age and discretion of suitable age and discretion thenresiding therein.
Thus, there was invalid service if made with the defendants son-in-law whowas not
living in the same house as his parents-in-law, although living in the same
compound.(Sps. Miranda v. Court of Appeals, etc., et al., G.R. No. 114243, prom.
February 23, 2000)The statement of impossibility of service should be made in the
proof of service. This isnecessary because substituted service is in derogation of the
usual method of service.Substituted service is a method extraordinary in character,
and hence may be used only as prescribed in the circumstancs authorized by
statute. Thus, the statutory requirements of substituted service must be followed
strictly, faithfully, and any substituted service other thanthat authorized by the
statute is considered ineffective.There is a presumption that a sheriff has regularly
performed his official fnctions inutilizing substituted service of summons. To
overcome the presumption arising from thesheriffs certificate, the evidence must
be clear and convincing. (Umandap v.Judge Sabio, Jr., etal., G.R. No. 140244, prom.
August 29, 2000)
***122.
How is service of summons made upon a domestic private entity ?
SUGGESTED ANSWER:

When the defendant is a corporation, partnership orassociation organized under the

laws of the Philippines with a juridical personalituy,service may be made on the
a.
president,
67

b.
managing partner,
c.
general manager,
d.
corporate secretary,
e.
treasurer, or
f.
in-house counsel.
(Sec. 11, Rule 14, ROC numbering and arrangement supplied) NOTES AND
COMMENTS: The above has restricted the persons who are considered
asrepresentatives upon whom service of summons upon a corporation is to be
made. The author believes that the rule on substantial compliance of serving
summons which allows service of summons other than those mentioned under the
previous Sec. 13, Rule 14 (now amended as Sec.11, Rule 14), referred to in G & G
Trading, Porac Trucking, Inc., and Millenium Industrialcommercial Corporation v. Tan.,
G.R. No. 131724, prom. February 28, 2000, all having beendecided prior to the 1997
Rules, is not applicable anymore. This is so, because the 1997 Rulesremoved the
words manager, secretary, cahsier, agent from the rule and replaced it with
morespecific persons like the managing partner, general manager, corporate
secretary, treasurer, or in-house counsel.
***123.

How is service of summons effected on a defendant Philippine resdient temporarily

abroad ?

SUGGESTED ANSWER:a. Personal service outside the Philippines with leave of court;
b. Publication, with leave of court, in a newspaper of general circulation in such
placesand for such time as the court may order in which case:1) copy of the
summons and order of the court shall be sent by registeredmail to the last known
address of the defendant, and2) The order specifies a reasonable time, not less than
sixty (60) daysafter notice within which the defendant must answer.c. In any other
manner the court may deem sufficient. (Sec. 15 in relation to Sec. 16, both of Rule
14, ROC)The above methods are also known as extraterritorial service of summons
may beresorted to for actions
in rem
or
quasi in rem
with leave of court.
NOTES AND COMMENTS:
***
a
. Instances when the above methods of extraterritorial service may be resortedto
with leave of court
:1) When the defendant does not reside and is not found in the Philippines,anda)
The action affects the personal status of the plaintiff or b) The action relates to, or
the subject of which is property withinthe Philippines, is one in which the defendant
has or claims a lien or interest, actual or contingent, or c) The relief demanded in
such action consists, wholly or in part,.In excluding defend ant from any interest
therein, or c) The property of the non-resident defendant has been attachedwithin
the Philippines. (Sec. 15, Rule 14, ROC)2) The above methods are resorted to where
the action is
in rem
or
quasiin rem

.3) What gives the court jurisdiction is not jurisdiction over the person but
jurisdiction over the
res,
i.e.a) Personal status of the plaintiff (not the defendant) who isdomiciled in the
Philippines; b) The property litigated; or c) The property attached. (Valmonte, et al.,
v. Court of Appeals,et al., G.R. No. 108538, prom. January 22, 1996)

b
. Illustration of applicability and non-applicability of extraterritorial service
underSec. 15, Rule 14, Rules of Court: Instances where there was NO valid service:
1) No valid service in an action for partitioning and accounting under Rule 69 of the
Rules of Court (which is an action
quasi in rem
), if made upon thehusband, who is residing in the Philippines, of a non-resident
defendant not foundin the Philippines. Leave of court must be obtained and
methods in Sc. 15, Rule14, ROC must be followed.
68

The service upon the husband cannot be justified under the last phrase of Sec. 15,
Rule 14, ROC, which provides, "in any manner the court may deemsufficient,"
because:a) This mode of service like the first two (personal and publication), must
be made outside the Philippines, such as through thePhilippine Embassy in the
foreign country where the defendant resides; b) No leave of court was obtained in
the form of a motion inwriting, supported by affidavit of the plaintiff or some other
person in his behalf and setting forth the grounds or the application. (Valmonte, et
al.,v. Court of Appeals, et al., G.R. No. 108538, prom. January 22, 1996)2) Although
the Supreme Court considered publication in the Philippinesof the summons
(against the contention that it should have been made in theforeign state where the
defendant was residing) sufficient, nonetheless the servicewas considered
insufficient because no copy of the summons was sent to the lastknown correct
address in the Philippines. (Sahagun v. Court of Appeals, 198SCRA 44) b.
Instances where there WAS valid service:

1) Service of summons on the husband was considered valid becausesummons was

served upon the defendant's husband in their conjugal home. Thewife was
temporarily absent because she was on vacation. (De Leon v.Hontanosa, 67 SCRA
458, 462-463)2) Service on the wife of a nonresident defendant was found to
besufficient because the defendant had appointed his wife as his attorney-in-fact.
(Gemperle v. Schenker, 125 Phil. 458)
***124.
Duraproof Services sued for damages various parties including Banco do Brazil, a
non-resident foreign bank which was served summons through the ambassador of
Brazil to the Philippines as well as through publication. For failure of Banco do Brazil
to fileits answer, it was declared in default and judgment rendered against it
awarding damages in favor of the plaintiff. Did the court obtain jurisdiction over
Banco do Brazil ? Why ?
SUGGESTED ANSWER: No. The action is one that is
in personam
because the plaintiff sought to recover damages for the alleged commission of an
injury to the person or property of the plaintiff. Since the action is one
in personam,
personal or, if not possible,substituted service of summons on the defendant, and
not extraterritorial service, in necessary toconfer jurisdiction upon the person of
Banco do Brazil. (Banco do Brasil v. Court of Appeals, etal., G.r. Nos. 121576-78,
prom. June 16, 2000) NOTES AND COMMENTS:a.
Extraterritorial service of summons applicable only in actions
in rem
or
quasi in

rem
.
Extraterritorial service of summons apply only where the action is
in rem
, an action againstthe thing itself instead of against the person, or in an action

quasi in rem,
where an individual isnamed as defendant and the purpose of the proceeding is to
subject his interest therein to theobligation or loan burdening the property. This is so
inasmuch as, in
in rem
and
quasi in rem
actions, jurisdiction over the person of the defendant is not a prerequisite to confer
jurisdictionon the court provided that the court acquires jurisdiction over the
res.
Any relief granted in
in rem
or
quasi in rem
actions must be confined to the
res,
and thecourt cannot lawfully render a personal judgmnt against the defendant.
(Banco do Brasil v. Courtof Appeals, et al., G.R. Nos. 121576-78, prom. June 16,
2000)
PLAINTIFF's NOTICES, MOTIONS, ETC.
a. Notice of
lis pendens
b. Notice to withdraw or dismiss the complaint.c. Motion to amend or supplement
the complaint.
NOTICE OF
LIS PENDENS

***125.

Investco sold to Solid Homes, Inc., a parcel of land on installments. As aresult of the
alleged failure of Solid Homes, Inc., to pay because its postdated checks bounced

unlawful detainer case in order to await the final judgment in the more substantive
caseinvolving legal possession or ownership. (Aznar Brothers Realty Co. v. Court of
Appeals, et al.,G.R. No. 128102, prom., March 7, 2000)
***173-A.
In Republic v. Garcellano, 103 Phil. 231, the Supreme Court affirmed thedecision of
the CFI of Zamboanga City expropriating 280,885 sq. m. of land that is now part of
the Zamboanga Intl. Airport. On February 17, 1996, acting on the basis of a
reconstituted title, the alleged heirs of Jun Ledesma, a defendant in expropriation
case (Republic v.Garcellano) forcibly entered the property and caused the building
of a concrete wall separating the property from the rest of the airport.
Consequently, the government filed acomplaint for forcible entry, but the MTC
dismissed the case. On appeal, RTC, Branch 17,reversed the decision. Since the
defendants did not appeal, the RTC decision became final. Inthe meantime, the
heirs-defendants filed a complaint for accion publiciana, alleged that the
government did not pay them just compensation, the property was not being used
for the purpose for which they were expropriated, they were in possession, titles to
same were in their names, no res judicata because there are other parties, etc. The
case was raffled to RTC, Branch 13. The government moved to dismiss the
complaint. Instead of resolving that motion, Branch 13 issued a TRO dated
November 18, 1997 directing the MTC to cease and desist from enforcing the
forcible entry case decision. On December 16, 1997, the court issued a writ of of
preliminary injunction explaining that while the forcible entry case had become final
and executory, the claim of ownership of the land and actual occupation thereof by
the heirs (aside from the fact that they had not yet been compensated for the
appropriated land), demanded stay of execution.Was RTC, Branch 13 correct in
issuing the injunctive writ? If not, what should be theremedy of the heirsdefendants?
SUGGESTED ANSWER: No. Although the injunctive writs issued by RTC, Branc
13were directed to the MTC, the same had the ultimate effect of preventing the
execution of thedecision of the RTC, Branch 17, a court of equal rank and
jurisdiction.The remedy of the heirs-defendants should have been to oppose the
issuance of a writ of execution by the MTC on these grounds, instead of asking RTC,
Branch 13 to issue a TRO or awrit of preliminary injunction. (Actg. Solgen de la Cruz
v. Judge Eisma, etc. A.M. No. RTJ-00-1544, prom. March 15, 2000)
APPEAL FROM THE RTC TO CA
APPELLATE JURISDICTION OF COURT OF APPEALS

174.
What is the appellate jurisdiction of the Court of Appeals over decisions of Regional
Trial Courts ?

SUGGESTED ANSWER: The Court of Appeals shall exercise :a. Exclusive original
jurisdiction over actions for annulment of judgments of RegionalTrial Courts; andb.
Exclusive appellate jurisdiction over all final judgments, decisions, resolutions,
orders,or awards of Regional Trial Courts.

(Sec. 9, B.P. Blg. 129 paraphrasing supplied)

175.
What may not be appealed ?

SUGGESTED ANSWER:(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from
judgment;(c) An interlocutory order;(d) An order disallowing or dismissing an
appeal;(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress, or any other
ground vitiating consent;(f) An order of execution;(g) A judgment or final order for or
against one or more of several parties or in separateclaims, counterclaims, crossclaims and third-party complaints, while the main case is pending,unless the court
allows an appeal therefrom; and
98

(h) An order dismissing an action without prejudice

.
(2nd par., Sec. 1, Rule 41, ROC)NOTES AND COMMENTS:a.
Remedy where the judgment, order, etc., is not appealable
:

Where the judgmentor final order is not appealable, the aggrieved party may file an
appropriate special civil actionunder Rule 65
.
(last sentence, Sec. 1, Rule 41, ROC)b.
What may be appealed:
An appeal may be taken from a judgment or final order thatcompletely disposes of
the case, or of a particular matter herein when declared by the Rules of Court to be
appealable.

(1st par., Sec. 1, Rule 41, ROCA judgment or order denying relief under Rule 38 is
final and appealable, unlike an order granting such relief which is interlocutory.
Hence, jurisdiction then properly belonged to theCourt of Appeals. (Service
Specialists, Inc. v. Sheriff of Manila , 145 SCRA 139)Relief of judgment; a unique
remedy; allowed only in exceptional cases.- The issue of jurisdiction aside, the
Supreme Court has emphasized that a petition for relief from judgment is aunique
remedy in the sense that it is based on the principle of equity and constitutes the
petitioners final chance to prosecute or defend his cause. Being an act of grace, a
petition for relief from judgment is usually not regarded with favor and thus, is
allowed only in exceptionalcases where there are no other adequate and available
remedies. (Basco y Salao v. Court of Appeals and the People of the Philippines, G.R.
No. 125290, prom. August 9, 2000)
***
c.
Denial of motion for reconsideration not appealable.
The failure to perfect anappeal within the reglementary period is not a mere
technicality. It raises a jurisdictional problem as it deprives the appellate court of
jurisdiction over the appeal. The failure to file thenotice of appeal within the
reglementary period is akin to the failure to pay the appeal fee withinthe prescribed
period. In both cases, the appeal
***176.
How are appeals taken from the Regional Trial Court to the Court of Appeals?

SUGGESTED ANSWER:1) Appeal in

ordinary cases:
a) Filing of notice of appeal with the Regional Trial Court that renderedthe judgment
or order appealed from. (Sec. 2 [a], Rule 41, ROC) b) Payment of the appellate
docket fee and other lawful fees to theRegional Trial Court. (Sec. 4, Rule 41, ROC)c)
Within fifteen (15) days from notice of the judgment or final order appealed from.
(Sec. 3, Rule 41, ROC)2) Appeals in
special proceedings
and other cases wherein multiple appeals areallowed:a) Filing of a notice of appeal
and record on appeal with the RegionalTrial Court that rendered the judgment or
order appealed from. (Sec. 2 [a], Rule42, ROC) b) Payment of the appellate docket
fee and other lawful fees. (Sec. 4,Rule 41, ROC)c) Within thirty (30) days after notice
of the judgment or final order appealed from. (Sec. 3, Rule 41, ROC)3) Appeals of
judgments
in exercise of appellate jurisdiction
:a) Filing of verified petition for review with the Court of Appeals. (Sec.1, Rule 42,
ROC) b) Payment of docket and other lawful fees and deposit of P500.00 for costs.
(Sec. 1, Rule 42, ROC)c) Within fifteen (15) days from notice of the decision sought
to bereviewed or of the denial of the petitioner's motion for new trial or
reconsiderationfiled in due time after judgment.d) Additional period of fifteen (15)
days, only after motion for extension, payment of docketing and other lawful fees
and further extension of fifteen (15)days only for the most compelling reasons. (Sec.
1, Rule 42, ROC)
APPEAL FROM CTA, QUASI-JUDICIAL AGENCIES TOCA
99

177.
How are appeals taken from the Court of Tax Appeals and quasi-judicial agencies to
the Court of Appeals ?

SUGGESTED ANSWER:
Appeals from the Court of Tax Appeals and quasi-judicialagencies

like the Civil Service Commission, Central Board of Assessment Appeals,

Securitiesand Exchange Commission, Office of the President, Land Registration
Authority, SocialSecurity Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and TechnologyTransfer, national Electrification Administration, Entergy
Regulatory Board, NationalTelecommunications Commission, Department of
Agrarian Reform under Republic Act No.6657, GSIS, Employees compensation
commission, Philippine Atomic Energy Commission,Board of Investments,
Construction Industry Arbitration Commission and voluntary arbitratorsauthorized
by law
to the Court of Appeals
:1) Appeal through verified petition for review filed with the Court of Appeals.(Sec.
5, Rule 43, ROC)2) Payment to clerk of court of the Court of Appeals the docketing
and other lawful fees and P500.00 deposit for costs. (Sec. 5, Rule 43, ROC)3) Within
fifteen (15) days from notice of award, judgment, order or date of last publication if
required. (Sec. 4, Rule 43, ROC)4) Additional time of fifteen (15) days only may be
granted after motion for extension, payment of docket and other lawful fees and
deposit for costs and further extension for the most compelling reasons and in no
case to exceed fifteen (15) days.(Sec. 4, Rule 43, ROC)
APPEAL TO THE SUPREME COURT
***178.
How is an appeal by certiorari taken to the Supreme Court ?

SUGGESTED ANSWER: Appeal from the

Court of Appeals, the Sandiganbayan, theRegional Trial Court
or other courts whenever authorized by law
to the Supreme Court
:

1) Appeal only through verified petition for review on certiorari raising onlyquestions
of law and filed with the Supreme Court. (Sec. 1, Rule 45, ROC)2) Payment of docket
fee and other lawful fees to the clerk of court of theSupreme Court with deposit of
P500.00 for costs.3) Within fifteen (15) days from notice of the judgment or order
appealed from,or of denial of petitioner's motion for new trial or reconsideration
filed in due time after notice of judgment.4) Extension to file petition for a period of
thirty (30) days only may be grantedfor justifiable reasons, on motion duly served

and with full payment of docket and other lawful fees and deposit for costs. (Sec. 2,
Rule 45, ROC)

NOTES AND COMMENTS:a.

Scope of the review by the Supreme Court in a petition for review on
certiorari

asa mode of appeal under Rule 45 of the Rules of Court. Only those errors
committed by the Courtof Appeals and not by the trial court. Futhermore, only
questions of law may be raised and passed upon. Absent any whimsical or
capricious exercise of judgment, and unless the lack of any basis for the conclusions
made by the lower courts be amply demonstrated, the SupremeCourt will not
disturb their findings. (Tanedo, et al., v. Court of Appeals, et al., G.R. No.104482,
prom. January 22, 1996)
179.
The general rule is that factual findings of the lower courts are final and conclusive
and not subject to review by the Supreme Court under Rule 45 of the Rules of Court.
State the exceptions to this general rule:
SUGGESTED ANSWER: The following are the exceptions:a. When the inference made
is manifestly mistaken, absurd or impossible;b. Where there us grave abuse of
discretion;c. When he finding is grounded entirely on speculation, surmises or
conjectures;d. When the judgment of the Court of Appeals is based on
misapprehension of facts;e. When the findings of fact are conflicting;f. When the
Court of Appeals, in making its findings went beyond the issues of the caseand the
same is contrary to the admissions of the appellant and the appellee;g. When the
findings of facts are conclusions without citation of specific evidence onwhich they
are based;
100

2) In civil cases, the burden of proof rests upon the party who, as determined bythe
pleadings or the nature of the case asserts affirmative allegations of an issue.
(Rodriquez v. Valencia, 81 Phil. 787)REASON: He who asserts and not he who denies,
must prove. (Lagasca v. De Vera, 79Phil. 376)The party who asserts the affirmative

would lose as to a particular issue or the entire case,if no evidence were given on
either side. (
Ibid.,
citing Sec. 1, Rule 131, ROC)c.
Prosecution has burden of proof in criminal cases
: In criminal cases the burden of proof as to the offense charged lies on the
prosecution. A negative fact alleged by the prosecution need not be proved unless it
is an essential ingredient of the offense charged.REASON: The accused has in his
favor the presumption of innocence.d.
Burden of proof in infringement cases
: The burden of proof to substantiate a chargeof infringement is with the plaintiff.
But where he plaintiff introduces the patent in evidence,and the same is in due
form, there is created a
prima facie
presumption of its correctness andvalidity. The decision of the Commissioner of
Patent (now the Director of the IntellectualProperty Office), in granting the patent is
presumed to be correct.The burden of going forward with the evidence (burden of
evidence) then shifts to thedefendant to overcome by competent evidence this legal
presumption. (Maguan v. Court of Appeals, et al., 146 SCRA 116, 117)
ORDER OF PRESENTATION OF EVIDENCE43.
State the order of presentation of evidence if trial is to be heard in order toadduce
evidence.

SUGGESTED ANSWER:a. The plaintiff shall adduce evidence in support of his

complaint;b. The defendant shall then adduce evidence, in support of his defense,
counterclaim,cross-claim and third-party complaint;c. The third-party defendant, if
any, shall adduce evidence of his defense, counterclaim,cross-claim and fourthparty complaint;d. The fourth-party, and so forth, if any, shall adduce evidence of
the material facts pleaded by them;e. The parties against whom any counterclaim
or cross-claim has been pleaded, shalladduce evidence in support of their defense,
in the order to be prescribed by the court;f. The parties may then respectively
adduce rebutting evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon their original case;
andg. 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 anyfurther pleadings.If several defendants or third-party

defendants, and so forth, having separate defensesappear by different counsel, the

court shall determine he relative order of presentation of their evidence. (Sec. 5,
Rule 30, ROC arrangement and numbering supplied) NOTES AND COMMENTS:a.
Scope of judges participation at trial
:

A judge who presides at a trial is not a merereferee. He must actively participate

therein by directing counsel to the facts in dispute, byasking clarifying questions,
and by showing an interest in a fast a fair trial. (Clarin v. Yatco, 56O.G. 7042, Nov.
14, 1960)He can interrogate witnesses to elicit the truth, to obtain clarification, or to
test their credibility. (People v Moreno, 83 Phil. 286)However, this power must be
exercised by the court sparingly and judiciously. (People v.Ferrer, 44 O.G. 112). Of
course, the judge cannot curtail counsel's right to interrogate witnesses.(People v.
Bedia, 83 Phil. 909)b.
Power of court to stop further evidence
:1) The court may stop2) the introduction of further testimony3) upon any particular
point4) when the evidence upon it is already so full5) that more witnesses to the
same point
165

6) cannot be reasonably expected7) to be additionally persuasive.But this power

should be exercised with caution
.
(Sec. 6, Rule 133, ROC arrangementand numbering supplied)When the evidence
already presented on one point is sufficient and the party merelyseeks to present
cumulative evidence which cannot produce additional persuasive effect or thathe is
not sure of what the other witnesses would testify, the court may in its sound
discretion stopthe introduction of such further evidence. (People v. Reyes, et al., 133
SCRA 51)c.
Role of attorney during presentation of evidence
: An attorney has a dual role to perform relative to proving the truth respecting a
matter of fact.He must ensure that all evidence supporting the material allegations,
whether raised inthe pleadings or not are admitted by the court. His other role is to

block the admission of evidence supporting his opponents' material allegations

whether raised in the pleadings or not.In order to perform this dual role the attorney
should ensure that the evidence he offersare admissible in accordance with the
Rules of Court and those of his opponent are properlyobjected to for being
inadmissible
44.
What is the rationale for requirement of offer of evidence ?

SUGGESTED ANSWER: The offer is necessary because it is the duty of a judge to

resthis findings of facts and his judgment only and strictly upon the evidence
offered by the partiesto the suit. (Mr. Chief Justice Moran cited in People v. Franco,
G.R. No. 118607, prom. March4, 1997)NOTES AND COMMENTS: Evidence not
formally offered not considered on appeal.Evidence is not formally offered before
the trial court cannot be considered on appeal. Toconsider them at this stage will
deny the other parties their right to rebut them. (ServicewideSpecialists, Inc. v.
Court of Appeals, et al., G.R. No. 117728, prom. June 26, 1996)

***
45.
What is meant by present recollection revived ?
SUGGESTED ANSWER: A witness may be allowed to refresh his memory respecting
amatter of at by referring to anything:

a. Written or recorded by himself or under his direction; b. At the time when the fact
occurred, or immediately thereafter, or at any other timewhen the fact was fresh in
his memory;c. He knew that the same was correctly written or recorded.

But in such case the writing must be produced and may be inspected by the
adverse partywho may, if he chooses, cross-examine the witness upon it, and may
read it in evidence. (Sec.16, Rule 132, ROC)NOTES AND COMMENTS: The concept of
past recollection recorded. A witness maytestify from such writing or record though
he retains no recollection of the particular facts, if heis able to swear that the
writing or record correctly stated the transaction when made, but suchevidence
must be received with caution. (Sec. 16, Rule 132, ROC)

46.
What is the effect of inadmissible evidence that has not been properly objected to ?

SUGGESTED ANSWER: It is a well-settled doctrine that where the proponent

offersevidence deemed by counsel of the adverse party to be inadmissible for any
reason, the latter hasthe right to object.A protest or objection against the admission
of any evidence must be made at the proper time, and that if not so made it will be
understood to have been waived. The proper time to makea protest or objection is
when, from the question addressed to the witness, or from the answer thereto, or
from the presentation of proof, the inadmissibility of evidence is, or may be inferred.
(British Airways v. Court of Appeals, et al., G.R. No. 121824, January 29, 1998 citing
Abrenicav. Gonda, 34 Phil. 739)Cross-examination conducted to the inadmissble
evidence may constitute waiver.(British Airways,
supra
)
47.
How is the adverse partys witnesses impeached ?

SUGGESTED ANSWER:

a. By contradictory evidence.

b. By evidence that his general reputation for truth, honesty, or integrity is bad.
166

c. By evidence that he has made at other times statements inconsistent with his
presenttestimony.
But not

by evidence of particular wrongful acts,

except
that it may be shown by the examination of the witnesses, or the record of the
judgment that he has been convicted of anoffense. (Sec. 11, Rule 132, ROC)

NOTES AND COMMENTS:

The concept of laying the predicate
.

It is the duty of the party trying to impugn thetestimony of a witness by means of

prior or, for that matter, subsequent inconsistent statements,whether oral or in
writing, to give the witness a chance to reconcile his conflicting declarations,such
that it is only when no reasonable explanation is given by him that he should been
deemedimpeached. (People v. Relucio, 86 SCRA 242)
48.
What is the evidence required in civil cases ?

SUGGESTED ANSWER: The party having the burden of proof must establish his case
by a preponderance of evidence. (Section 1, Rule 133, ROC)NOTES AND
COMMENTS: Preponderance of evidence is

evidence which is of greater weight, or more convincing that that which is offered in
opposition to it. (National Power Corporation v. Court of Appeals, et al., G.R. No.
122195, prom. July 23, 1998 citing NewTestament of God v. Court of Appeals, 246
SCRA 266)
49.
What are the requisites for sufficiency of circumstantial evidence ?

SUGGESTED ANSWER:a. There is more than one circumstance.b. The facts from
which the inferences are derived are proven.c. The combination of all the

circumstances is such as to produce a conviction beyondreasonable doubt. (Sec. 4,

Rule 133, ROC)