Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
JURISDICTION
• In the case of Unicapital, it has been long settled that while a court acquires jurisdiction
over the case only upon payment of the docket fees, its non-payment at the time of the
filing of the complaint does not automatically cause the dismissal of the case, provided the
fees are paid within a reasonable time.
• The Manchester rule cannot apply in the absence of proof that there is fraud.
• What if there was payment but it was inadequate? Can we say that the court had no
jurisdiction because the payment of filing fees was inadequate?
• The SC has been fairly consistent on this point. From the case of Rivera v. Del Rosario,
the SC said that if the complainant relied in good faith on the assessment of the clerk of
court, though the payment of filing fees is inadequate, the court is considered to have
acquired jurisdiction.
• General rule: the payment of filing fees is jurisdictional. In instances when the court awards
damages which was not prayed for, it will be considered a lien on the judgment award.
• In the case of Unicapital:
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
o In the complaint, there was a prayer for metered filing fees: P2 million for every
month of non-payment (so it is an amount of damages that is growing). The
defendant argues that the correct filing fees were not paid and therefore the case
should be dismissed. Issue: should the case be dismissed?
o The SC said that in situations of metered filing fees wherein damages continue to
accrue while the action is pending, it will be considered a lien on the judgment on
award. I want to be clear on this: only on metered filing fees, metered claims for
damages. This question has already been addressed by Proton Filipinas, not a
new case, but just to be very clear.
• If there is payment of filing fees, the court can only award interest on those which have
accrued and the corresponding filing fees have already been paid. But for those which
have accrued while the action is pending, interests that have been earned while the action
is pending, and the court awards it, it will be considered as a lien on the judgment award.
Indigent
• An indigent is entitled to the exemption on the payment of filing fees. The provision is
found in Rule 3 Section 21, but this should be read in relation to Rule 141 Section 19.
MEMORIZE THESE.
• If confronted with a question on whether or not an indigent should pay filing fees, ask these
2 questions:
o (1) Is he an indigent within the definition of the law? If yes, Rule 141 Section 19
provides that he does not need to pay filing fees.
▪ Who is an indigent? An indigent is someone whose income, and that of
his immediate family, does not exceed double the monthly minimum wage
AND does not own real property with the fair market value exceeding
P300,000. So immediately if your client falls within the definition, no need
to pay filing fees.
o (2) Does he fall squarely within the definition provided in Rule 141, Section 19?
▪ Example: a person owns a property worth P1 million but his salary is only
P5,000/month, can he ask to be declared an indigent under the provision
of the law?
▪ While he does not fall squarely within the definition provided in Rule 141
Section 19, he could still apply as an indigent under Rule 3 Section 21
subject to the discretion of the Court for the Court to ascertain whether his
income is enough for his food, clothing, and shelter.
Threshold amounts
Quieting of Title
• Quieting of title – not recovery of title, not recovery of possession. Only involves quieting
of title.
• When you talk of quieting of title as purely quieting of title, in accordance with Rule 63,
which is other similar remedies, regardless of the value of the property, it is with the
RTC. It is the case of Sabitsana v. Mortegi. The case of Dy v Palamos.
Hierarchy of Courts
judgment because it merely echoed what the SC said that the vessel should be
returned. The spouses were not happy about it being returned because the vessel
has already sunk, already deteriorated.
o From the RTC, they went directly to the Supreme Court to assail the action on a
Motion for Execution. Take note that a Motion for Execution is an interlocutory
order. Issue: Can the spouses ignore the hierarchy of courts?
o General rule: No. But in this particular case, the SC considered it as an exception.
Ordinarily, it should have been dismissed.
o Exceptions:
(1) When it is dictated by public welfare and advancement of public policy;
(2) In the broader interest of justice;
(3) Challenged orders are patent nullities; and
(4) Analogous exceptional and compelling circumstances.
• So when you talk of hierarchy of courts, you follow RTC to CA then to SC, such as when
you file a petition for certiorari.
Primary Jurisdiction
• General rule: if the court has no jurisdiction, the court should dismiss the case. The court
can neither remand the case nor reassign the case.
• BUT take note of the concept of primary jurisdiction.
o The concept of primary jurisdiction applies only if the case originated from a quasi-
judicial agency.
▪ Therefore if a case is filed with the RTC, which had no jurisdiction because
it should have been the MTC, the case should be dismissed. You cannot
apply the concept of primary jurisdiction. You can only apply the concept
of primary jurisdiction if the case was filed and it originated from a
quasi-judicial agency.
• In the case of Nisperos:
o The case was instituted with the DARAB, and there was allegedly an entitlement
over a piece of land. He contends that he is a tenant, the property was assigned
to him, he has been in continuous possession, and he has been cultivating it. From
the DARAB, it went to the CA, until it went to the SC.
o The SC said that it should not have gone through the CA immediately,
because the issue is not about tenant dispute, it involved title over a land. There
was no contention about land lord-tenant. Therefore, that case should have been
elevated first to the Secretary of Agrarian Reform. Therefore the SC said it will
not dismiss, but will refer according to the concept of primary jurisdiction.
o Take note, we don’t do that for actions filed in court.
Causes of action
PARTIES
• A sole proprietor can be a party to an action, despite the fact that the provision of the law
provides the following: natural and juridical person, and those entities specifically provided
for by law can be parties to an action.
• A DTI-registered trade name does not exist as a separate entity.
o The person who registered it is the party, therefore when a person sues or is sued,
it is: Juan Dela Cruz doing business under the name and style of ABC Enterprises.
That sole proprietorship has no separate juridical entity but can be a party to the
action.
• You might immediately think that since the rule is if the court renders a judgment and an
indispensable party was not made party to the case, the judgment is null and void. This is
only true is there is ALREADY A JUDGMENT.
• In the case of Makawahib:
o Police officer who insisted that he is not yet of the retirement age (56y/o). He
caused the age stated in his birth certificate to be amended to show that he is only
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
46y/o. The RTC granted it. The PNP, however, had no knowledge of this. After
some time, the PNP noticed so they questioned it. The SC said that the judgment
is null and void for failing to implead the Philippine National Police.
o Now class this is a tricky one, although they said that specpro is not included.
o 108 is really tricky because in 108 if you sue for a correction of a birth certificate,
for example, or entry in the civil registrar, your duty is to implead not only the civil
registrar, but also all parties who are to be affected by the change.
▪ This is the case of (Cerwila v. Dilantar?), which was asked in the bar exam.
▪ All those affected should be included.
Class suit
• Necessary party, if not impleaded and judgment is rendered, will not make the judgment
null and void. The judgment remains to be valid, unlike an Indispensable party.
• What if there’s an order to implead a necessary party and you failed to follow the order
the court? Will that be a valid judgment?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
o Yes. But your right of recourse against the non-impleaded necessary party is
deemed waived.
• What if there’s an order to implead an indispensable party and you fail to do so?
o If you fail to implead, the case will be dismissed.
• In the case of Aceron v. Ang, a case for collection of a sum of money was filed by Atty.
Aceron in behalf of Theodore and Nancy Ang. Theodore and Nancy reside in California,
they’re non-residents, while defendants reside in Bacolod. The action was filed by Atty.
Aceron in Quezon City where he resides. A motion to dismiss was filed but it was denied
by RTC. The question is: is the representative-lawyer a real party in interest, making the
filing of the complaint in court to be in the place where he resides? Answer: No. The
representative is just a representative and NOT a real party in interest. As a result, the
action should be dismissed because the venue was improperly laid.
Substitution
Sec. 20
• This refers to the death of a party-defendant. So if you see a question na patay yung party,
dahan dahan lang. It might not be substitution. Ask yourself, is the dead party a defendant?
What is the nature of the action? If it’s a sum of money, and the defendant dies, the
applicable provision is not sec. 16 but sec. 20. Will the case be dismissed? No. Will there
be substitution? No. Will the case continue? Yes. Against who? Against the estate. Pag
may namatay, walang naddismiss unless the action is purely personal which is
extinguished by death.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Venue
• There is this case of Briones, a 2015 case. He allegedly entered into a loan with Cash
Asia. He used his real property as security for the loan, but all along he was not in the
Philippines. He was in Vietnam for more than 4 years. So when he returned from Vietnam,
he learned that his property was mortgaged? So what would a prudent man do if he learns
that his property was mortgaged and it was not his own doing? He will cause the mortgage
to be cancelled. So he filed an action to cancel and rescind the “loan and the mortgage”.
• Cash Asia field motion to dismiss because the action was improperly filed. It was filed in
a venue where Briones resides and not where it was stipulated in the contract. Supreme
Court said, when the validity of the contract is in issue, the complaint should not be bound
by the venue stipulation and should be filed based on the general rules on venue under
Rule 4.
• Take note, if the law provides for a specific rule on venue, then that rule will apply. For
example, adopter, where adopter resides. Nullity of marriage, where the plaintiff resides,
where the defendant resides or where the conjugal home is located, at the option of the
plaintiff.
• Hence, Rule 4 will only apply if:
1) There is no law on the matter, or
2) There is no contractual stipulation to the contrary
• In a contractual stipulation:
o If there are rules of exclusivity = the venue is exclusively and only the venue
stipulated
o If there are no words of exclusivity, the venue is stipulation is only in addition to
the venue provided for in Rule 4.
• The case of Paglaom involves multiple contracts (real estate mortgage 1, 2 and 3, then a
restructuring agreement). In that case, which venue stipulation will apply? In the first
contract, sabi Manila excluding all other venues. In the 2nd contract, Cebu excluding all
other venues. The party defaulted in its obligation so the loan was restructured. A new
one was executed and then there is now a venue stipulation. Which venue stipulation will
apply in the event of litigation? It will be the most recent one. Because it supersedes the
other contracts.
• What if a promissory note has no venue stipulation, but there is a mother loan agreement.
The amount appearing on the promissory note was not paid when due so an action for
collection for sum of money was instituted. What venue will have to be followed? The
Supreme Court said that if the mother contract was directly connected and intertwined
with the promissory note, then the promissory note will be bound by the venue stipulation.
• In the case of Paras, Paras was on board an Inland bus which was then bumped at the
rear by Philtranco. As a result, the Inland bus hit a parked cargo truck. Paras filed a
complaint for damages based on contract of carriage against Inland because he was on
board the bus. Inland filed a third party complaint against Philtranco asserting that Paras’
cause of action should be against Philtranco. The RTC held that Philtranco is liable for
damages including moral damages. Philtranco contends that Paras couldn’t recover
damages including moral damages because the suit was based on a breach of contract
of carriage. Can Paras recover moral damages from the third party defendant? The
answer is yes. Third party complaint or impleader, that is Rule 6, Sec. 12.
• Requisites of third party complaint:
Summary proceeding
• In summary proceedings, the reglementary period is not 15 days. It’s only 10 days. The
court can dismiss the complaint outright.
• If there is no answer, you cannot file an action to declare the party in default if you’re the
plaintiff because it is a prohibited pleading. You cannot even file a motion to extend time
because it is a prohibited pleading.
• What if there was a complaint but there was no answer, can the court render a judgment?
Yes, without a motion to declare in default. It is under the Rule on Summary Procedure.
That is the first instance where the court can render a judgment.
• In the 2016 case of Knitcraft v. Loo Po, there was no answer to the complaint. Can the
court render a judgment? Of course. But what happened here was after the court rendered
a judgment based on the complaint, the other party was saying that the court cannot
render a judgment based on what the complaint says; the court can render a judgment
only if it satisfies the degree of evidence in civil cases, which is preponderance of
evidence.
o Should preponderance of evidence apply? No because the provision of the law on
summary procedure only says that if there is no answer, the court can render
judgment based on what the pleading may warrant. The preponderance of
evidence will only apply if there was presentation of judicial affidavits or position
papers on summary procedure.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
• Can you file a motion to dismiss on a case falling under the rules on summary procedure?
The general rule is no because it’s a prohibited pleading.
o Exception: when it involves subject matter jurisdiction or there was no prior referral
to barangay conciliation
• Let’s say you filed a motion to dismiss claiming that there was no jurisdiction. It was
denied. Can you file a petition for certiorari? A petition for certiorari in summary
procedure is a prohibited pleading. Certiorari, prohibition, mandamus of an interlocutory
order is a prohibited pleading.
• Yung prohibited pleading dito medyo kapareho sa writ of amparo. Motion to dismiss.
Motion to extend time. Dilatory motion for cancellation. Reply. Take note of that.
• Alam ko kasama ang writ of amparo. Maniwala kayo magtatanong sila dyan.
• So the rule is that petition for certiorari is a prohibited pleading. However, there are
exceptions. It is not in the law but in jurisprudence.
o It is in the old cases of Bayot and the case of Go wherein a petition for relief of
judgment was filed, it’s a prohibited pleading, because he has pulmonary
tuberculosis. But the court considered it. The preliminary conference was
indefinitely suspended. Take note, summary procedure, not pre-trial. The Court
said, the party had no choice but to file a petition for certiorari because he has no
other remedy. Please bear that in mind.
o Take note, at the point of petition for preliminary conference, can the court already
render judgment in summary procedure? Only if the court is convinced that there
is sufficient evidence for him to already render a judgment.
o What is the effect of absence of the plaintiff in preliminary conference? The case
will be dismissed. What if it’s the defendant? The court can already render
judgment. Mali yung sagot na the plaintiff will be allowed to present evidence
ex parte.
• Take note of the case of Fuji Television v. Espiritu, 2014 case. It is important because it
differentiated verification and certification.
• Verification is not a jurisdictional requirement, but a formal requirement.
o What does it state? Please memorize. “That I’ve caused the preparation of the
above petition or complaint and the same is true and correct based on my personal
knowledge or authentic documents or record.” If I were you, I’ll memorize that.
Hindi knowledge, information and belief.
• Is verification merely a formal requirement? Yes.
o Can it be corrected by an amendment? Yes, because it is not a jurisdictional
requirement.
Counterclaim
Reply
Actionable Documents
• If an action is based on an actionable document, the rule is you have to specifically deny
it under oath. Otherwise if you fail to specifically deny it under oath, the attached document
is considered admitted as to its genuineness and due execution.
o If it is presented later on trial, there is no need to authenticate the documents
anymore, consistent with Rule 132.
• Let me recall to you the case of Equitable Card Network v Capistrano, where there was
no specific denial.
o In this case, the claim was to recover sums of money against a woman who was
believed to have applied for a credit card, and there are no credit cards payments
but she was denying that she applied for it. She was a member of an association
and the credit card company said you have to pay for this and they attached also
her application form.
o There was no specific denial under oath so it was considered disadmitted.
o However, when it reached the Supreme Court, the SCC did not treat the absence
of a specific denial as an adverse or negative effect. The Supreme Court treated
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
the special affirmative defenses as the equivalent of a specific denial. Take note
this is an exceptional case.
o So the basic rule is, the denial should be a specific denial under oath.
▪ Is there an exception to the rule? The answer is Yes. The exception to
specific denial under oath is:
(1) If you are not a party to the action, you are not obliged to make a specific
denial under oath; and
(2) if there is an order for inspection and you did not comply with the court,
then the rule will not apply.
Default
Nonwaivable Grounds
o Rule 9 Sec. 1 states that grounds raised in an answer or a motion to dismiss are
considered as waived except:
1) Subject matter jurisdiction
2) Litis pendentia
3) Res judicata
4) Prescription.
These grounds that I mentioned are the grounds in which the court can
dismiss a case motu proprio.
• Rule 10 Sec. 5: Amendment to conform with the evidence only means that you will ask
the court to amend your pleading in the course of the pendency of your case or even
during trial to make it consistent with the evidence presented.
• So you will file a motion to amend the pleading to conform with the evidence because
evidence has already been presented and you want the pleading to be consistent with the
evidence.
• Let us say that the allegation in the complaint is P800,000 but in the course of the trial you
were able to prove 1.2 million pesos, can you amend your pleading to reflect the P1.2
million pesos? You will be presented with two scenarios: (1) if the other party does not
object then it could be amended; (2) if the other party objects, it is left to the discretion of
the court.
• When is there amendment as a matter of right? Before an answer is filed. After an answer
has been filed, it is left to the discretion of the court.
o Exception: if it is clerical or typographical error, it can be amended by motion of a
party or upon the court’s own motion.
• What is the difference between an amendment and a supplement?
o When you talk of an amendment, the facts sought to be changed are already
existing at the time of the filing of the pleading.
o Supplement are facts or circumstances or occurrences that took place after the
pleading to be supplemented; meaning, when you filed the complaint it was not yet
present or available, and that is why you want to supplement.
Bill of Particulars
• What is the effect of failure to comply with order to submit bill of particulars?
o For instance, I filed a complaint, the defendant filed a motion to request for bill of
particulars, and the court granted it. The court issued an order requiring me to
submit bill of particulars. What if I fail to comply despite the order of the court?
o The case will be dismissed.
o Verata v Sandiganbayan, that is the most recent case.
• Why do you file a motion for bill of particulars? To whom is it directed?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Service
• I want you to remember lis pendens. Rule 13. How do you cause the annotation of the
notice of lis pendens? (1) there should be an action instituted; after an action is instituted
(2) there should be written memorandum directed to the register of deeds where the
property is located indicating that an action has been instituted against this defendant and
a copy of the complaint and that this is the property subject of the litigation. There will be
an annotation.
• Can I cause the notice of a lis pendens in the absence of a judicial proceeding?
o No. There should be a judicial proceeding because it is the basis of the notice of
lis pendens.
• How do you cause the cancellation of the notice of lis pendens?
o The notice of lis pendens can only be cancelled upon order of the court. In the
absence of an order of the court, it cannot be cancelled.
o There should be good reasons. The reasons are as follows: (1) annotation of the
lis pendens is only to molest the parties and (2) it is no longer intended to protect
the right of the parties
• Will the establishment of a lis pendens result in a status or a right?
o No. It is purely a notice to inform the rest of the world that the property is a subject
of a litigation.
Summons
• Aberca v Ver: In this case, the defendants Ver , the general, and the rest of his cohorts
who were alleged to have committed human rights violations during the time of Marcos
was sued in a civil court in QC. For a period of time he couldn’t be located. There were
service of summons but they were unsuccessful after so many years. So the court may
been so tired and frustrated. So the court said “publish mo na lang yung notice to answer”.
Is that correct?
o No. Notices cannot be made by publication. Decisions, judgments originating from
the court can only be served in accordance with Sec. 9 Rule 13, that is personal
service or by registered mail. Hindi pwede publication.
o Pwede summons class, pag ang summons sinerve by publication, the judgment
should also be served by publication. But of course efforts will be made to serve it
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
in the last known address. There is nothing in the provision of the law that allows
the court to publish a decision.
Proof of Filing
• What if you served a copy of the pleading to the adverse party? The adverse party was
nowhere to be found. Therefore, the document that was intended for the adverse party
was returned to you. What would you do with the document that was returned to you?
o Ok this is your duty, Number 1, you would have to submit the return card. Sec. 13
of Rule 13: If the document was returned, you would have to submit the document
itself, not only the return card, plus a certification from the post office of the reason
for the return.
Summons
• First, determine if the foreign entity has a resident agent. If none, determine if there is a
law which designates a public officer to receive summons for them. If there is none,
determine if there is an agent in the Philippines.
• If everything fails, remember that the wording of the law is not doing business. The wording
of the law in the first paragraph of Sec 12 is transacted.
• What if the foreign entity is not registered in the Philippines and has no resident
agent? How do you serve summons?
o You will have to seek leave of court to be able to serve in the following manner: (1)
personal service through the foreign court with the assistance of the Department
of Affairs, (2) by publication in a general circulation in the place where the
defendant corporation holds office (not in the Philippines but in that foreign country,
(3) facsimile or any other electronic means for as long as proof of service is
generated, and (4) other means as the court may direct.
• RCBC vs. Hi-Tri Development Corp
o Remember that if what was presented to you is an escheat of bank accounts, do
not apply Sec. 11 because there is a separate law that applies. This law was cited
in the above case. It is Act. 3936. Escheat are actions in rem. The action is brought
against the thing itself. There is no need to serve notice or eve summons to these
separate or individual depositors for unclaimed accounts. Service of summons
should be made to the President, cashier, or managing officer, and by publication
of the summon in a newspaper of general circulation.
• Carcell Realty (2017 case)
1 Example of temporarily absent: goes to America to visit parents every 3 months, and returns to the Philippines after one month
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
o By filing an entry of appearance and by seeking affirmative relief, the company has
already submitted to the jurisdiction of the court.
• National Petroleum gas case—are you considered to have submitted to the
jurisdiction of the court when you file a motion to dismiss with special appearance?
o Sec 20 of Rule 14, you can join in a motion to dismiss on all grounds and it will not
be considered as not submitting to the jurisdiction of the court. But in this case, the
court stated that while sec 20 says that you can include all grounds, you cannot
however seek other relief. Because the very moment you seek other relief, even if
you file a motion to dismiss, you are considered to have submitted to the
jurisdiction of the court.
Motions
(1) Notice of hearing – every litigated motion should have a notice of hearing, unless the
motion is one which will not prejudice the rights of the adverse party.
(2) Three day notice rule – the motion should have been served to the other party and
receipt thereof must have been ensured at least three days before the date before the
hearing.
(3) Ten day rule – the motion should not be set for hearing for a period longer than 10
days from the date of its filing.
(4) Motion day – bear in mind that the motion day should always be on a Friday at 2pm.
Only if a Friday is a non-working day or a holiday will the motion hearing be set on the
next working day.
(5) Omnibus motion rule – all grounds or objections available at the time should be raised.
Otherwise, it is deemed waived.
Motion to dismiss
• What if the case is dismissed on the ground of lack of jurisdiction over the person
of the defendant, and you do not agree with the Court, what is you remedy to have
it reviewed?
o File a petition for certiorari (Rule 65).
Pre-trial
• LBL vs. City of Lapu Lapu – who sets the case for pretrial?
o After the filing of the last pleading or reply, it is the duty of the plaintiff to file an ex
parte motion to set the case for pre-trial within a period of five (5) days.
• What if the plaintiff fails to file an ex parte motion?
o It is the duty of the clerk of court to issue a notice of pre-trial (LBL vs. City of Lapu
Lapu)
• What is the remedy if the plaintiff is non-suited2?
o The remedy is an appeal.
• What if the defendant is absent but the plaintiff is present? What is the
consequence?
o The plaintiff will be allowed to present evidence ex parte.
• What is the remedy of the non-appearing defendant?
o He could file a Motion for reconsideration or to lift or set aside the order on the
ground of fraud, accident, mistake, or excusable neglect (Saguid vs. CA)
• NOTE: The above consequences apply only when it is the parties themselves who are
absent and not when it is the lawyer of either the plaintiff or the defendant that is absent.
This is unless the lawyer was duly authorized by his client to appear for or in his behalf. In
which case, if the said lawyer is absent, the above consequences will apply.
• Also, even if you are absent, the consequences will not apply if you have good reasons
for your absence.
• If you fail to submit a pre-trial brief, the consequences are the same as absence, whether
you are the plaintiff or defendant.
• Even if you are present but you did not submit a pre-trial brief, the consequences for
absence will also apply.
• A case was dismissed on the ground of lack of jurisdiction over the subject matter. Then
an action was subsequently instituted by the same plaintiffs in the first case involving the
same subject matter. Such action was also dismissed but on the ground that it was filed
in a wrong court. The plaintiff again instituted an action in the now right court.
o While the action was pending but before an answer was filed, the plaintiff decided
to withdraw the case.
2 Meaning the plaintiff fails to appear during pre-trial.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
• Does it mean that you can use the deposition as a testimony of the person who is not
available? – YES
o But bear in mind that deposition as a rule cannot be used as a replacement for
actual testimony in court. Beucase the rule is that a witness must testify in court,
you cannot do away by just taking a deposition
o If the witness for the accused is sick/dying/infirm or more than 100km from the
place where the hearing is to be conducted and cannot wait until the trial comes.
o Rule 119 shall apply
• If you have taken a deposition of a person, are you oblige to use it?
o NO, taking is different from use. But the very moment you use a part, the rest of
the deposition can be examined.
• What is the effect of failure to serve written interrogatories under Rule 25?
o You will not be allowed to the present the adverse party, the other party, and the
opponent as a witness. You cannot call him in the witness stand. Or you cannot
avail of deposition pending appeal.
o After issues are join meaning after an answer has been filed
• What if you refuse to answer the entire interrogatories? (Rule 29, Sec. 5)
o The Court can dismiss your case if you are the plaintiff; court declare judgment by
default if you are a defendant; allegation supporting your claim could be stricken
off.
Note: These are the same requisites if you apply for a subpoena duces tecum
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
• This is mode of discovery that can only be used in cases if mental and physical condition
is in controversy. (eg guardianship, insanity)
• Either party can apply for this.
• Consolidation can only take place where there is common fact and common law.
• Unicapital v. Cosing: Although there were two cases involved where such cases have
the same parties, same proceeding, and the same factual antecendent. SC held that the
two cases should remain unconsolidated since they proceed from different sources of
obligation. One case involves abuse of rights while the other is for collection of money.
• Because Consoldiation is not mandatory, it is left to the sound discretion of the court
• What do you need to remember? Best evidence rule. Secondary evidence rule, parole
evidence rule. And whether the contents of the evidence are subject of the inquiry, that’s
an original. Entries made in the regular course of business at or near the time of the
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
transaction or execution of documents of what you call duplicate originals at or about the
same time, that’s an original.
• What is the best evidence rule? When the contents of the document is the subject of the
inquiry, then you have to present the original. According to jurisprudence memory can
falter. Besides, according to juris, in te absence of the original, there can be fabricated
evidence that can be presented.
• The Shangri-La case. Do you need to present the original if what is intended to establish
is whether the document exists? No. when the subject of inquiry is not the content of the
document but only whether the document exists, the answer is that you don’t need to
present the original. A photocopy would suffice. Therefore there could be other evidence
to be presented. The contents of the document are not subject of the inquiry
• What are the exemptions? This leads to secondary evidence. When the exemptions enter,
those are the secondary evidence. Example: Lost or destroyed documents with no fault
on the part of the offeror. What are the requisites? You would have to establish the
existence, the execution, the deed has been lost or destroyed without fault of the offeror.
These requisites are laying the basis. If you are able to lay the basis, what can you present
as secondary evidence?
• The secondary evidence are as follows: copy, recital in some authentic documents, or
testimony of witnesses. In that order. The requisites are not the secondary evidence. That
is only the laying of the basis for presentation of copy, recital in some authentic document,
or testimony of witnesses. In that order.
• The second exemption to presentation of an original if the document is in the custody of
the adverse party. Establish, execution, existence, notice directed to the other party who
is in possession of the document to produce it and despite timely notice he did not produce
it. Only then can you present: copy, recital in some authentic documents, or testimony. In
that order.
• The third: voluminous records and documents. Long and voluminous documents. Not
required to present the original not only because it is voluminous but because it only tends
to establish a general fact. The contents are not at issue. All you want to establish is the
general fact/ For example: income for the last fifty years. You don’t need all the invoices,
delivery receipts. All I need is a list 2001, 2002, etc. I don’t need to present the original.
All I need to establish is a general fact or a general result.
• The fourth: that the document is in the custody of a public officer or recorded in a public
office. In such a situation, the question is: where is the document? The document is
where? In a government office, whether it is in custody of a public officer or recorded in a
public office. In that case, what is the substitutionary evidence? Certified true copy.
• What is the in the document is the repository of what the parties have agreed upon. We
cannot go outside of this. If we have an agreement we cannot go say pay 2M when what
is in the memorandum of agreement is 1M. If we have a suit alter on and you try to
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
introduce that in court: “Objection, your honor. Violation of the rule on parole evidence.”
Because what is in the document is the repository of what the parties have agreed upon.
• What are the exemptions? Because sometimes there are times that what is in here is not
exactly what the parties have agreed upon. But it is a requirement of law that you can only
introduce what you call extraneous evidence or parole evidence. That parole evidence
rule, you can now present extraneous evidence or parole when you make it an issue on
the pleadings. By putting it in ussie you can modify, revise or add into what is in the
agreement. But you have to put it in issue.
• The exemptions are:
o First: intrinsic ambiguity. When you read it, it looks okay. But when you try to
implement it, there is a problem. Like it says Carlos Santos and there are three
Carlos Santoses in my company. We have a problem. Can you present extraneous
evidence to show who exactly is the party to the agreement? Yes. Mistake should
be mutual mistake to pave the way for a reformation.
o Imperfection. The deed of sale was made, wrong technical description.
Imperfection. Can be corrected by parole evidence. TCT says 1458, technical
description was for a different title. So there is imperfection.
o When what is in the document is not reflective of the true intent of the parties. The
document shows I have sold my 1 hectare property to you but now I contest. It
later appeared that you mislead me to sign a blank document. Can I make that an
issue in the pleadings and present parole? Yes. Because it does not reflect the
true intention of the parties.
o There is an agreement subsequent. Written in the contract 25 years for lease, we
field suits. You’re claiming 25 but there is a document subsequent to this which
has shortened the period to ten years. And it is more than 10 years, the lease has
expired, you have to vacate.
• As to validity: Parole evidence can be presented not to make valid an otherwise invalid
contract. But parole evidence can be established to show that the consent was affected,
duress, misrepresentation, fraud. All of this can be presented in terms of parole evidence.
Testimonial Evidence
• How about a child of tender years? Can a three year old testify?
o Case of Tacorda v. Clemence. The judge was being questioned by the lawyer that
the judge did not observe the child witness examination rule. The lawyer was
claiming that the child was being badgered by the other lawyer, the child was not
given time to rest to be able to recover his senses.
o The ruling was that the judge was not remiss in his obligation. What is the duty of
the judge? It is to conduct a competency examination.
o What the law requires is that the child is able to perceive and make known his
perception known to another and he knows the consequences of his own and what
is right from what is wrong.
o And please bear in mind, consistent with rule132 and the child witness examination
rule, you can ask leading questions. Please bear in mind that the child witness
examination rule applies in civil, criminal, and administrative cases.
oPeople v. Rosales: If confronted with the question, the SC has been consistent in
saying if it is slight mental retardation, the person can testify for as long as the
person is able to perceive and able to make known his presentation to another.
o You have to distinguish the mental age from the physical age. Because what
dictates the ability to testify is the mental age and not the physical age.
▪ If the physical age is 45 but the mental age is 2, the witness cannot testify.
If the physical age is 35 but the mental age is 16, he can testify. In the case
of Rosales, the basis of the determination of the court is the mental age.
• Can an affidavit be presented in court?
o Not referring to a judicial affidavit. The answer is yes.
o However, if it is not subject to cross examination, it is unreliable according to the
case of People v. Corpuz. So an affidavit taken ex parte, is generally unreliable
unless it was subject to a cross examination.
Privileged Communication
• Penitent priests
o That provision has a very limited application. It is only limited to those religious
institutions or orders which requires a confession. Therefore, in the Philippines, it
is only the Roman Catholic, outside of those, it is not covered under the privilege.
He can be called on to the stand. When you talk of the penitent and the priest
privilege here, that is enjoined by the religious institution to which he belongs. If
the religious institution does not say so, it is not covered. Therefore, the pastor, the
reverend can be called to testify
• Doctor and patient
o In this case, remember, the doctor received information. The information was
necessary for him to give treatment and advice. Remember this. All other
information is useless. Please bear in mind that this privilege extends to only civil
cases and not to criminal. Also remember that the information and not the illness
would, if disclosed, will blacken the reputation of the patient. That is why it is a
privilege in favor of the patient and waivable at the instance of the patient.
o How about a laboratory record? Hospital lab record? Is it covered by the privilege?
If it is necessary to give treatment and advice, then it is covered.
▪ There is one case decided involving nullity of marriage wherein the wife
wanted to subpoenaed the hospital record’s of the husband, claiming
mental problems of the husband. The SC did not answer it directly. All the
SC said, wait, premature since we are not on trial when you applied for
subpoena. It said if it were a production of books, papers, documents under
a rule 27, the privilege communication can be invoked.
o If the party who is entitled to it is, they are willing to testify, he can testify. What the
provision prohibits is him being compelled to testify but if he volunteers to testify,
then he can.
• The difference between an admission and a declaration against interest….
• What are the grounds for a petition for relief from judgment?
o Fraud, accident, mistake, excusable neglect.
• What are the periods to file a petition for relief from judgment?
o The period is 6 months from entry of judgment, but within 60 days from knowledge.
• Who can file a petition for relief from judgment?
o Only a party to the case.
• Alaban vs. CA
o Sec. 1 clearly provides the rule, and was expounded on in the case, which was an
action in rem. It was one for distribution of estate wherein the estate had already
been partitioned and distributed to the heirs, while Alaban was left out, and only
afterward learned of it. He filed a motion to set it aside, which the court denied. He
filed a petition for annulment of judgment with the CA, but the court said his remedy
was wrong. There had been proper publication, and therefore he became deemed
party to the action—he should have filed a petition for relief from judgment, besides
he had learned of the order only within a period of 60-90 days from entry of
judgment.
• The remedy of relief from judgment is not available if the right to file an MR or New Trial
was defeated by the would-be petitioner’s fault.
Execution
• Discretionary execution can only be granted by the court for good reasons. A bond is not
required; all that is required is good reasons stated in a special order of the court.
• Bear in mind that if it is execution as a matter of right, where do you file it? Do you need
to give good reasons first?
o No, because it is a right. The reglementary period to appeal had already lapsed.
Or even if there was an appeal, the SC rendered judgment, and you have no further
available remedy and you allow that to become final and executory. When it
becomes final and executory, then a motion for execution becomes a matter of
right. It is filed with the court that rendered the judgment. It can also be filed before
the appellate court if it was appealed, but there should be good cause and good
reason. In all cases, the writ should always be issued by the trial court.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Revival of Judgment
instance where you have to apply for execution that you need to attach a certified copy of
the judgment.
• Air Transportation Office vs. CA, May 2014
o An ejectment case, where the judgment of the MTC was appealed to the RTC,
which was again appealed. Is the judgment of the RTC immediately executory in
an ejectment case on appeal from the MTC, given RTC only has appellate
jurisdiction in these cases?
o Yes. The judgment of the MTC is executory, but it can be stayed. How do you stay
it?
o Under Rule 70, Sec. 19 – file a notice of appeal within the reglementary period,
post a supersedeas bond, pay rentals within the period of appeal, and the
execution will be stayed at the MTC. When the RTC renders a decision, it will be
executory. Will it be stayed again by an appeal to the CA?
o According to ATO case, NO. the court said that the judgment of the RTC is not
stayed by an appeal taken therefrom unless ordered by an appellate court, if it
issues a TRO or a preliminary injunction. Further, the execution of the RTC
judgment in an ejectment case is not discretionary execution under Sec. 2 of Rule
39, even if the case is further appealed. By law, it is executory.
Ejectment
Preliminary Attachment
payment—it is but natural that the writ should coutinue to exist until full payment.
But if the facts were different, wherein the parties expressly agree that the
compromise will lift the writ, then it will no longer stand.
• BPI vs. Carlito Lee
o Preliminary attachment and execution. In this case, there was the Citytrust Bank,
which merged with BPI. Carlito Lee was a creditor through his company, Trendline.
He started to institute an action to recover his money, one of his efforts was to
apply for a writ of attachment, which was granted. In the meantime, the funds were
frozen in Citytrust, but it was merging already with BPI. He won the case and
wanted to execute, but BPI claimed that the record was lost and they were not
aware, and that they were not party to the action and thus not bound by the action.
The purpose of an attachment is to secure the judgment, and in the event of the
final and executory judgment, those attached things will be the first things to be
used to satisfy the judgment. When those things attached are insufficient to fulfil
the obligation, then there is ordinary execution. The SC held that upon the service
of the writ of garnishment, the garnishee becomes a virtual party or a forced
intervenor. The trial court thus acquires jurisdiction to bind the garnishee to comply
with its orders and processes. The garnishee need not be impleaded as a party to
the case; all that is necessary for the trial court to lawfully bind the garnishee or
any person in possession of credits belonging to the debtor, a service upon him of
the writ of garnishment.
• How do you dissolve the writ of attachment?
• Sec. 12, 13 of Rule 57 provides:
o Upon a counterbond – partial or full release of the counterbond. It can only be
released only when a writ of attachment has been enforced. You cannot anticipate
a writ of attachment and post a counterbond—you can only do it after the writ is
enforced.
o Improper, irregular, or excessive attachment – Improper means there are no
grounds to grant an attachment; irregular means that procedure was not
followed—there was no affidavit or filing of a bond; excessive attachment will only
dissolve that which is in excess.
• Can you attach a property exempt from execution?
o No. The point of attachment is to secure the judgment—if something is exempt, it
defeats the purpose. The rule per jurisprudence is that if the person who owns the
property subject of execution claims that it is exempt, it is the duty of the court to
ascertain if the property is indeed exempt. Failing to do so, any order of the court
allowing execution is null and void.
• Service of Summons
o Davao Light vs. CA – jurisdiction over the person should be acquired at the time
of the enforcement of the writ of attachment or injunction. It is not necessary that
jurisdiction over the person be acquired prior to enforcement of attachment or
injunction. Attachment and injunction can be issued ex-parte as part of initiatory
pleadings, and the court can grant these—but still service of summons to acquire
jurisdiction over the defendant is not needed until these will actually be enforced.
The rule is the same when a TRO is issued ex parte.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Preliminary Injunction
REPLEVIN
o That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge,
information, and belief ;
o That the property has not been distrained or taken for a tax assessment or
a fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it
is exempt from such seizure or custody; and
o The actual market value of the property.
• What is the importance of the FMV? It determines the amount of the bond. In replevin, the
bond is double the value of the property.
• Let me now call your attention to this provision that applies to all provisional remedies
except Rule 61.
o Rule 57 Sec 20
RECEIVERSHIP
DECLARATORY RELIEF
Section 1. Who may file petition. — Any person interested under a deed,
will, contract or other written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance, or any other
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
INTERPLEADER
QUO WARRANTO
MANDAMUS
o SC: Yes
o How to collect money claims against a government entity? Sabi kasi we cannot
hamper government operations. So here is the remedy:
o Regarding final money judgment against the government or any of its
agencies or instrumentalities, the legal remedy is to seek relief with the COA
pursuant to Supreme Court Administrative Circular 10-2000 dated October
25, 2000, which states as follows:
SUBJECT : EXERCISE OF UTMOST CAUTION, PRUDENCE AND
JUDICIOUSNESS IN THE ISSUANCE OF WRITS OF EXECUTION
TO SATISFY MONEY JUDGMENTS AGAINST GOVERNMENT
AGENCIES AND LOCAL GOVERNMENT UNITS.
In order to prevent possible circumvention of the rules and
procedures of the Commission on Audit, judges are hereby enjoined
to observe utmost caution, prudence and judiciousness in the
issuance of writs of execution to satisfy money judgments against
government agencies and local government units.
EXPROPRIATION