REMEDIAL LAW I (BRONDIAL)
CIVIL PROCEDURE 2. Review, revise, reverse, modify, or affirm on appeal
I. JURISDICTION
How do you distinguish residual jurisdiction from
residual prerogative?
What is residual jurisdiction? Jurisdiction of a court in
spite losing its jurisdiction because of the perfection of
an appeal still retains it for purposes of preserving the
rights of the parties.
A is the plaintiff and B is the defendant. Trial court ruled
in favor B. A appeals. Before the records are transferred
to the appellate court, the trial court retains jurisdiction.
How can that particular trial court exercise such
jurisdiction? Can an execution be granted ex parte? No.
On what action can the trial court act upon? Motion for
execution pending appeal. Once appeal is perfected,
and the records of the case have been transmitted to
the appellate court, there is no more exercise of
residual jurisdiction. But in case of execution as a matter
of right, once jurisdiction is lost, it can never be
regained. Nonetheless, under Rule 39, the writ of
execution can be granted by the trial court only.
How can the trial court, if it has already lost its
jurisdiction, still exercise the same? In the exercise of
residual jurisdiction.
What is residual prerogative?
There are 3 principles involved in concurrent
jurisdiction:
1. Hierarchy of Courts;
2. Supreme Court is not a trier of facts; and
3. Transcendental Importance
General rule: Jurisdiction is conferred by law.
Exception: The jurisdiction of Supreme Court is
conferred by the Constitution.
1987 Constitution, Article VIII, Section 5. The Supreme
Court shall have the following powers: xxx
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or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of
any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Note: this is the
exclusive original jurisdiction of the Supreme Court.)
b. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto. (Note: This refers to SC’s appellate jurisdiction.
So this power to Review, Reverse, Revise, Modify and
Affirm is within the appellate powers of the jurisdiction
of the Supreme Court.)
c. All cases in which the jurisdiction of any lower court is
in issue.
d. All criminal cases in which the penalty imposed is
reclusion perpetua or higher. (Note: The “or higher”
clause no longer applies because the death penalty is
suspended)
e. All cases in which only an error or question of law is
involved.
3. Assign temporarily judges of lower courts to other
stations as public interest may require. Such temporary
assignment shall not exceed six months without the
consent of the judge concerned.
4. Order a change of venue or place of trial to avoid a
miscarriage of justice.
5. Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance
to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
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6. Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
“Review”, “Reverse”, “Revise”, “Modify” or “Affirm”
must be defined separately and distinctly:
1. Review – consists of Reverse, Revise, Modify or
Affirm. The term review is a catch-all provision.
Review means to take cognizance of the decision,
but does not cover resolution of the lower body.
Review means to look into.
2. Reverse – overturn a favorable judgment to an
unfavorable one or vice versa
3. Revise – revision, not a simple amendment
4. Modify – modification or amendment
5. Affirm – accept the decision of the lower body
“on appeal or certiorari” – to what kind of appeal is it
referring to?
The word “appeal” is by ordinary appeal. The word
“certiorari” is “appeal by certiorari” as a mode of appeal
under Rule 45 because when you speak of “review,
revise, reverse, modify, or affirm” it is in the exercise of
appellate jurisdiction of the SC; it must have come from
a lower court and not an original action under Rule 65
which is a special civil action and not a mode of appeal.
The modes of appeal under Rule 41 section 2 are:
1. Ordinary Appeal;
2. Petition for review; and
3. Appeal by certiorari
But the kind of certiorari mentioned is a mode of appeal
because when you speak of Review, Reverse, Revise,
Modify and Affirm, it is the exercise of appellate
jurisdiction.
How could it be an original action when it is certiorari?
Certiorari there refers to Rule 65 because Rule 65 is a
special civil action, it is not a mode of appeal.
What is a mode of Appeal by certiorari? Rule 45. So the
statement there on appeal—ordinary appeal or
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certiorari---appeal by certiorari---it cannot be a special
civil action because it is appellate jurisdiction of the
Supreme Court.
In civil actions, you do not go to the Supreme Court by
ordinary appeal. In criminal actions, there is notice by
appeal to the Supreme Court. There is no more
automatic appeal because of the removal of the death
penalty, but it does not mean you can no longer appeal
to the Supreme Court. You can still do so by notice of
appeal and when you speak of the Constitution, it
applies to both civil and criminal cases.
Lourdes L. Eristingcol vs CA: Petitioner is an owner of a
residential lot in Urdaneta Village, Makati City. On the
other hand, [respondent Randolph] Limjoco, [Lorenzo]
Tan and [June] Vilvestre were the former president and
chairman of the board of governors, construction
committee chairman and village manager of [Urdaneta
Village Association Inc.] UVAI, respectively. UVAI is an
association of homeowners at Urdaneta Village.
Petitioners action against UVAI, Limjoco, Tan and
Vilvestre is founded on the allegations that in
compliance with the National Building Code and after
UVAI’s approval of her building plans and acceptance of
the construction bond and architect’s fee, Eristingcol
started constructing a house on her lot with “concrete
canopy directly above the main door and highway”; that
for alleged violation of its Construction Rules and
Regulations (or “CRR”) on “Set Back Line” vis-a-vis the
canopy easement, UVAI imposed on her a penalty of
P400,000 and barred her workers and contractors from
entering the village and working on her property; that
the CRR, particularly on “Set Back Line,” is contrary to
law; and that the penalty is unwarranted and excessive.
The parties reached a temporary settlement whereby
UVAI, Limjoco, Tan and Vilvestre executed an
undertaking which allowed Eristingcol’s workers,
contractors and suppliers to leave and enter the village,
subject only to normal security regulations of UVAI.
UVAI, Limjoco, Tan and Vilvestre filed a motion to
dismiss on ground of lack of jurisdiction over the subject
matter of the action. They argued that it is the Home
Insurance Guaranty Corporation (HIGC) which has
jurisdiction over intra-corporate disputes involving
homeowners associations, pursuant to Exec. Order No.
 REMEDIAL LAW I (BRONDIAL)
535, Series of 1979, as amended by Exec. Order No. 90,
Series of 1986.
Petitioner alleged, among others, that UVAI, Limjoco,
Tan and Vilvestre did not comply with the mandatory
provisions of Secs. 4 and 6, Rule 15 of the 1997 Rules of
Civil Procedure and are estopped from questioning the
jurisdiction of the RTC after they voluntarily appeared
therein “and embraced its authority by agreeing to sign
an Undertaking.”
RTC denied the MTD holding that its jurisdiction may
not be assailed “after they voluntarily entered their
appearance, sought reliefs therein, and embraced its
authority by agreeing to sign an undertaking to desist
from prohibiting (Eristingcol’s) workers from entering
the village.” It applied the doctrine enunciated in Tijam
v. Sibonghanoy. CA dismissed the complaint for lack of
jurisdiction.
Issue:
Whether it is RTC or Housing and Land Use Regulatory
Board (HLURB) having jurisdiction over the subject
matter of the complaint.
Ruling:
HLURB. As regards the defendants’ supposed embrace
of the RTC’s jurisdiction by appearing thereat and
undertaking to desist from prohibiting Eristingcol’s
workers from entering the village, suffice it to state that
the invocation of the doctrine in Tijam, et al. v.
Sibonghanoy, et al. is quite a long stretch.
The factual milieu obtaining in Tijam and in this case are
worlds apart. As found by the CA, defendants’
appearance before the RTC was pursuant to, and in
compliance with, a subpoena issued by that court in
connection with petitioner’s application for a TRO. On
defendants’ supposed agreement to sign the
Undertaking allowing petitioner’s workers, contractors,
and suppliers to enter and exit the village, this
temporary settlement cannot be equated with full
acceptance of the RTC’s authority, as what actually
transpired in Tijam.
The landmark case of Tijam is, in fact, only an exception
to the general rule that an objection to the court’s
jurisdiction over a case may be raised at any stage of the
proceedings, as the lack of jurisdiction affects the very
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authority of the court to take cognizance of a case. In
that case, the Surety filed a Motion to Dismiss before
the CA, raising the question of lack of jurisdiction for the
first time—15 years after the action was commenced in
the CFI of Cebu. Indeed, in several stages of the
proceedings in the CFI, as well as in the CA, the Surety
invoked the jurisdiction of said courts to obtain
affirmative relief, and even submitted its case for a final
adjudication on the merits. Consequently, it was barred
by laches from invoking the CFI’s lack of jurisdiction.
To further highlight the distinction in this case, the TRO
hearing was held on February 9, 1999, a day after the
filing of the complaint. On even date, the parties
reached a temporary settlement reflected in the
Undertaking. 15 days thereafter, defendants, including
Limjoco, filed a MTD. Certainly, this successive and
continuous chain of events cannot be characterized as
laches as would bar defendants from questioning the
RTC’s jurisdiction.
Duero vs CA: According to Duero, private respondent
Bernardo Eradel occupied Gabriel Duero’s land in
Surigao del Sur. As shown in the tax declaration, the
land had an assessed value of P5,240. Despite repeated
demands, Eradel refused to leave. Duero filed before
the RTC a complaint for Recovery of Possession and
Ownership against Eradel and Apolinario and Inocencio
Ruena. Duero and Ruenas executed a compromise
agreement, stating that the Ruenas bound themselves
to respect the ownership of Duero. Eradel was not a
party to the agreement, and he was declared in default
for failure to file his answer to the complaint. Duero
presented his evidence ex parte. RTC ruled in his favor.
Eradel filed a Motion for New Trial, alleging that he has
been occupying the land as a tenant of Artemio
Laurente, Sr. He explained that he turned over the
complaint and summons to Laurente in the honest
belief that as landlord, the latter had a better right to
the land and was responsible to defend any adverse
claim on it. However, RTC denied the motion for new
trial.
A RED Conflict Case, an administrative case between
Duero and applicant-contestants Romeo, Artemio and
Jury Laurente, remained pending with the Office of the
Regional Director of the DENR in Davao City. It was
forwarded to the DENR in Agusan del Sur. Duero filed
 REMEDIAL LAW I (BRONDIAL)
before the RTC a Petition for Relief from Judgment,
reiterating the same allegation in his Motion for New
Trial. He averred that unless there is a determination on
who owned the land, he could not be made to vacate
the land. Also, the judgment of the RTC was void
inasmuch as the heirs of Artemio, who are indispensable
parties, were not impleaded. The grandchildren of
Artemio who were claiming ownership of the land, filed
a Motion for Intervention. RTC denied the motion. RTC
denied the Petition for Relief from Judgment. In an MR,
Duero alleged that the RTC had no jurisdiction over the
case, since the value of the land was only P5,240 and
therefore it was under the jurisdiction of the MTC. RTC
denied the MR.
Duero filed a Motion for Execution, which the RTC
granted. Entry of Judgment was made of record and a
writ of execution was issued by the RTC. Duero filed his
petition for certiorari before the CA. CA gave due course
to the petition, maintaining that Eradel is not estopped
from assailing the jurisdiction of the RTC when Eradel
filed with said court his MR And/Or Annulment of
Judgment.
Issue:
Whether private respondent was estopped from
assailing the jurisdiction of the RTC after he had filed
several motions before it.
Ruling:
No. It was Duero who filed the complaint before the
RTC, believing that the RTC had jurisdiction. RA 769117
amending BP 129 had already become effective, such
that jurisdiction already belongs not to the RTC but to
the MTC. Eradel, an unschooled farmer, in the mistaken
belief that since he was merely a tenant of the Artemio,
his landlord, gave the summons to a Hipolito Laurente,
one of the heirs of Artemio, who did not do anything
about the summons. For failure to answer the
complaint, Eradel was declared in default. He then filed
a Motion for New Trial in the RTC and explained that he
defaulted because of his belief that the suit ought to be
answered by his landlord. He stated that he had
evidence to prove that he had a better right than Duero
because of his long, continuous and uninterrupted
possession as bona-fide tenant-lessee. But his motion
was denied. He tried an alternative recourse. He filed
before the RTC a Motion for Relief from Judgment. RTC
denied his motion, hence he moved for reconsideration
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of the denial. In his MR, he raised for the first time the
RTC's lack of jurisdiction. This motion was denied. Eradel
raised the issue of lack of jurisdiction, not when the case
was already on appeal, but when the case, was still
before the RTC that ruled him in default, denied his
motion for new trial and for relief from judgment, and
denied his 2 MRs. After RTC still refused to reconsider
the denial of Eradel's motion for relief from judgment, it
went on to issue the order for entry of judgment and a
writ of execution.
The lack of jurisdiction of the court over an action
cannot be waived by the parties, or even cured by their
silence, acquiescence or even by their express consent.
Further, a party may assail the jurisdiction of the court
over the action at any stage of the proceedings and
even on appeal. RTC should have declared itself barren
of jurisdiction over the action. Even if Eradel actively
participated in the proceedings before said court, the
doctrine of estoppel cannot still be properly invoked
against him because the question of lack of jurisdiction
may be raised at anytime and at any stage of the action.
As a general rule, the jurisdiction of a court is not a
question of acquiescence as a matter of fact, but an
issue of conferment as a matter of law. Also, neither
waiver nor estoppel shall apply to confer jurisdiction
upon a court, barring highly meritorious and exceptional
circumstances.
Estoppel must be applied only in exceptional cases, as
its misapplication could result in a miscarriage of justice.
Duero filed his complaint before a court without
appropriate jurisdiction. Eradel, a farmer whose tenancy
status is still pending before the administrative agency,
could have moved for dismissal of the case on
jurisdictional grounds. But the farmer could not be
expected to know the nuances of jurisdiction and
related issues. This farmer ought not to be penalized
when he claims that he made an honest mistake when
he initially submitted his motions before the RTC, before
he realized that the controversy was outside the RTC's
cognizance. To hold him in estoppel as the RTC did
would amount to foreclosing his avenue to obtain a
proper resolution of his case. He would be evicted from
the land prematurely, while RED Conflict Case would
remain unresolved. Such eviction on a technicality if
allowed could result in an injustice, if it is later found
that he has a legal right to till the land he now occupies
as tenant-lessee.
 REMEDIAL LAW I (BRONDIAL)
Gonzaga vs CA: Facts: In 1970, petitioners purchased a
parcel of land from private respondent Lucky Homes,
Inc. The lot was specifically denominated as Lot No. 19
and was mortgaged to SSS as security for their housing
loan. Petitioners started the construction of their house
on Lot No. 18, as private respondent mistakenly
identified Lot No. 18 as Lot No. 19. Private respondent
informed petitioners of such mistake but the latter
offered to buy Lot No. 18 to widen their premises. Thus,
petitioners continued with the construction of their
house. However, petitioners defaulted in the payment
of their housing loan from SSS. Lot No. 19 was
foreclosed by SSS and petitioners’ certificate of title was
cancelled and a new one was issued in the name of SSS.
After Lot No. 19 was foreclosed, petitioners offered to
swap Lot Nos. 18 and 19 and demanded from private
respondent that their contract of sale be reformed and
another deed of sale be executed with respect to Lot
No. 18, considering that their house was built therein.
However, private respondent refused. Thus, petitioners
filed, on June 13, 1996, an action for reformation of
contract and damages with the RTC.
On January 15, 1998, RTC dismissed the complaint for
lack of merit. RTC held that the reformation of
instruments or the swapping of Lot 18 and Lot 19 is no
longer feasible considering that plaintiff is no longer the
owner of Lot 19, otherwise, defendant will be losing Lot
18 without any substitute therefore. Upon the other
hand, plaintiff will be unjustly enriching himself having
in its favor both Lot 19 which was earlier mortgaged by
him and subsequently foreclosed by SSS, as well as Lot
18 where his house is presently standing. What plaintiff
had bought from the defendant is Lot 19 which parcel of
land has been properly indicated in the instruments and
not Lot 18 as claimed by the plaintiff. The contracts
being clear and unmistakable, they reflect the true
intention of the parties, besides the plaintiff failed to
assail the contracts on mutual mistake, hence the same
need no longer be reformed.
On June 22, 1998, a writ of execution was issued by the
trial court. Thus, on September 17, 1998, petitioners
filed an urgent motion to recall writ of execution,
alleging that RTC had no jurisdiction to try the case as it
was vested in the Housing and Land Use Regulatory
Board (HLURB) pursuant to PD 957 (The Subdivision and
Condominium Buyers Protective Decree). Conformably,
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petitioners filed a new complaint against private
respondent with the HLURB. Likewise, on June 30,
1999, petitioner-spouses filed before the CA a petition
for annulment of judgment, on the ground that RTC had
no jurisdiction to try and decide the Civil Case.
CA denied the petition for annulment of judgment,
relying mainly on the jurisprudential doctrine of
estoppel as laid down in the case of Tijam vs.
Sibonghanoy.
Issue: Whether or not the principle of estoppel may be
applied even though RTC had no jurisdiction to decide
the Civil Case.
Ruling: Yes. While an order or decision rendered
without jurisdiction is a total nullity and may be assailed
at any stage, active participation in the proceedings in
the court which rendered the order or decision will bar
such party from attacking its jurisdiction. As we held in
the leading case of Tijam vs. Sibonghanoy: “A party may
be estopped or barred from raising a question in
different ways and for different reasons. Thus we speak
of estoppel in pais, or estoppel by deed or by record,
and of estoppel by laches. Xxx It has been held that a
party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and, after
obtaining or failing to obtain such relief, repudiate, or
question that same jurisdiction x x x x [T]he question
whether the court had jurisdiction either of the subject
matter of the action or of the parties was not important
in such cases because the party is barred from such
conduct not because the judgment or order of the court
is valid and conclusive as an adjudication, but for the
reason that such a practice can not be tolerated ––
obviously for reasons of public policy.”
A party’s active participation in all stages of the case
before the trial court, which includes invoking the
court’s authority to grant affirmative relief, effectively
estops such party from later challenging that same
court’s jurisdiction.
It was petitioners themselves who invoked the
jurisdiction of the RTC by instituting an action for
reformation of contract against private respondents. It
appears that, in the proceedings before the trial court,
petitioners vigorously asserted their cause from start to
finish. Not even once did petitioners ever raise the
 REMEDIAL LAW I (BRONDIAL)
issue of the court’s jurisdiction during the entire
proceedings which lasted for 2 years. It was only after
RTC rendered its decision and issued a writ of execution
against them in 1998 did petitioners first raise the issue
of jurisdiction ─ and it was only because said decision
was unfavorable to them. Petitioners thus effectively
waived their right to question the courts jurisdiction
over the case they themselves filed.
Petitioners should bear the consequence of their act.
They cannot be allowed to profit from their omission to
the damage and prejudice of the private respondent.
This Court frowns upon the undesirable practice of a
party submitting his case for decision and then
accepting the judgment but only if favorable, and
attacking it for lack of jurisdiction if not.
Public policy dictates that this Court must strongly
condemn any double-dealing by parties who are
disposed to trifle with the courts by deliberately taking
inconsistent positions, in utter disregard of the
elementary principles of justice and good faith. There is
no denying that, in this case, petitioners never raised
the issue of jurisdiction throughout the entire
proceedings in the trial court. Instead, they voluntarily
and willingly submitted themselves to the jurisdiction of
said court. It is now too late in the day for them to
repudiate the jurisdiction they were invoking all along.
Escobal vs Garchitorena: Petitioner was conducting
surveillance operations on drug trafficking at a
beerhouse. He got involved in a shooting incident,
resulting in the death of Rodney Nueca. An amended
Information was filed with the RTC charging petitioner
with murder. RTC preventively suspended petitioner
from the service under PD No. 971, as amended by PD
1847. General Headquarters of the PNP preventively
suspended the petitioner from the service until the case
was terminated. Petitioner was arrested by virtue of a
warrant issued by the RTC but he posted bail and was
granted temporary liberty. Petitioner pleaded not guilty
to the offense charged. Petitioner filed a Motion to
Quash the Information alleging that as mandated by CA
No. 408, in relation to Section 1, PD No. 1822 and
Section 95 of RA No. 6975, the court martial, not the
RTC, had jurisdiction over criminal cases involving PNP
members and officers.
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Pending the resolution of the motion, petitioner
requested the Chief of the PNP for his reinstatement.
Under RA No. 6975, his suspension should last for only
90 days, and, having served the same, he should now be
reinstated. Petitioner filed a motion in the RTC for the
lifting of the order of suspension. RTC denied the
motion. Trial proceeded, and the prosecution rested its
case. Petitioner presented his evidence. He filed an
MTC. Citing Republic v. Asuncion, he argued that since
he committed the crime in the performance of his
duties, the Sandiganbayan had exclusive jurisdiction
over the case.
RTC denied the MTD. It, however, ordered the conduct
of a preliminary hearing to determine whether or not
the crime charged was committed by the petitioner in
relation to his office as a member of the PNP. The
prosecution manifested that it was no longer presenting
any evidence in connection with the petitioner’s
motion. Its evidence showed that the petitioner did not
commit the offense charged in connection with the
performance of his duties as a member of the Philippine
Constabulary.
RTC declared that the petitioner committed the crime
charged while not in the performance of his official
function. RTC added that upon the enactment of R.A.
No. 7975, the issue had become moot and academic.
The amendatory law transferred the jurisdiction over
the offense charged from the Sandiganbayan to the RTC
since the petitioner did not have a salary grade of “27”
as provided for in or by Section 4(a)(1), (3) thereof. RTC
nevertheless ordered the prosecution to amend the
Information pursuant to the ruling in Republic v.
Asuncion and R.A. No. 7975. The amendment consisted
in the inclusion of an allegation that the offense charged
was not committed by the petitioner in the
performance of his duties/functions, nor in relation to
his office.
The petitioner filed a MR of the order. He asserted that
R.A. No. 7975 could not be applied retroactively. RTC
declared that based on the petitioner’s evidence, he
was on official mission when the shooting occurred.
RTC ordered the public prosecutor to file a Re-Amended
Information and to allege that the offense charged was
committed by the petitioner in the performance of his
duties/functions or in relation to his office; and,
conformably to R.A. No. 7975, to thereafter transmit the
 REMEDIAL LAW I (BRONDIAL)
same, as well as the complete records with the
stenographic notes, to the Sandiganbayan.
The Presiding Justice of the Sandiganbayan ordered the
Executive Clerk of Court to return the records of
Criminal Case to the court of origin. Under P.D. No.
1606, as amended by R.A. No. 7975, the RTC retained
jurisdiction over the case, considering that the
petitioner had a salary grade of “23.” Furthermore, the
prosecution had already rested its case and the
petitioner had commenced presenting his evidence in
the RTC; following the rule on continuity of jurisdiction,
the latter court should continue with the case and
render judgment therein after trial.
Issue:
Whether or not the Presiding Justice of the
Sandiganbayan properly remanded the case to the RTC.
Ruling:
Yes. The petitioner contends that when the amended
information was filed with the RTC on February 6, 1991,
P.D. No. 1606 was still in effect. Under Section 4(a) of
the decree, the Sandiganbayan had exclusive
jurisdiction over the case against him as he was charged
with homicide with the imposable penalty of reclusion
temporal, and the crime was committed while in the
performance of his duties. He further asserts that
although P.D. No. 1606, as amended by P.D. No. 1861
and by R.A. No. 7975 provides that crimes committed by
members and officers of the PNP with a salary grade
below “27” committed in relation to office are within
the exclusive jurisdiction of the proper RTC, the
amendment thus introduced by R.A. No. 7975 should
not be applied retroactively. This is so, the petitioner
asserts, because under Section 7 of R.A. No. 7975, only
those cases where trial has not begun in the
Sandiganbayan upon the effectivity of the law should be
referred to the proper trial court.
The private complainant agrees with the contention of
the petitioner. In contrast, the Office of the Special
Prosecutor contends that the Presiding Justice of the
Sandiganbayan acted in accordance with law when he
ordered the remand of the case to the RTC. It asserts
that R.A. No. 7975 should be applied retroactively.
Although the Sandiganbayan had jurisdiction over the
crime committed by the petitioner when the amended
information was filed with the RTC, by the time it
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resolved petitioner’s motion to dismiss on July 31, 1995,
R.A. No. 7975 had already taken effect. Thus, the law
should be given retroactive effect.
The jurisdiction of the court over criminal cases is
determined by the allegations in the Information or the
Complaint and the statute in effect at the time of the
commencement of the action, unless such statute
provides for a retroactive application thereof. The
jurisdictional requirements must be alleged in the
Information. Such jurisdiction of the court acquired at
the inception of the case continues until the case is
terminated.
Under Section 4(a) of P.D. No. 1606 as amended by P.D.
No. 1861, the Sandiganbayan had exclusive jurisdiction
in all cases involving the following:
(1) Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public
officers and employees in relation to their office,
including those employed in government-owned or
controlled corporations, whether simple or complexed
with other crimes, where the penalty prescribed by law
is higher than prision correccional or imprisonment for
six (6) years, or a fine of P6,000.00 ….
However, for the Sandiganbayan to have exclusive
jurisdiction under the said law over crimes committed
by public officers in relation to their office, it is
essential that the facts showing the intimate relation
between the office of the offender and the discharge
of official duties must be alleged in the Information. It
is not enough to merely allege in the Information that
the crime charged was committed by the offender in
relation to his office because that would be a conclusion
of law.[22] The amended Information filed with the RTC
against the petitioner does not contain any allegation
showing the intimate relation between his office and
the discharge of his duties. Hence, the RTC had
jurisdiction over the offense charged when on
November 24, 1995, it ordered the re-amendment of
the Information to include therein an allegation that the
petitioner committed the crime in relation to office. R.A.
 REMEDIAL LAW I (BRONDIAL)
No. 7975 amending P.D. No. 1606 was already in effect
and under Section 2 of the law:
In cases where none of the principal accused are
occupying positions corresponding to salary grade “27”
or higher, as prescribed in the said RA No. 6758, or PNP
officers occupying the rank of superintendent or higher,
or their equivalent, exclusive jurisdiction thereof shall
be vested in the proper RTC, MeTC, MTC, and MCTC, as
the case may be, pursuant to their respective
jurisdiction as provided in BP Blg. 129.
Under the law, even if the offender committed the
crime charged in relation to his office but occupies a
position corresponding to a salary grade below “27,” the
proper RTC or MTC, as the case may be, shall have
exclusive jurisdiction over the case. In this case, the
petitioner was a Police Senior Inspector, with salary
grade “23.” He was charged with homicide punishable
by reclusion temporal. Hence, the RTC had exclusive
jurisdiction over the crime charged conformably to
Sections 20 and 32 of BP Blg. 129, as amended by
Section 2 of R.A. No. 7691.
The petitioner’s contention that R.A. No. 7975 should
not be applied retroactively has no legal basis. It bears
stressing that R.A. No. 7975 is a substantive procedural
law which may be applied retroactively.
Asia’s Emerging Dragon vs DOTC: Doctrines: There is no
question as to the jurisdiction of the RTC of Pasig City
over the subject matter and parties in Civil Case No.
66213. The RTC can exercise original jurisdiction over
cases involving the issuance of writs of certiorari,
prohibition,mandamus, quo warranto, habeas
51
corpus and injunction. To recall, the Petition of AEDC
before the RTC of Pasig City was for the declaration of
nullity of proceedings, mandamus and injunction. The
RTC of Pasig City likewise had jurisdiction over the
parties, with the voluntary submission by AEDC and
proper service of summons on the DOTC Secretary and
the PBAC Chairman and members.
Special rights granted to original proponent in
public biddings. The special rights or privileges of an
original proponent come into play only when there are
other proposals submitted during the public bidding of
the infrastructure project. As can be gleaned from the
plain language of the statutes and the IRR. The original
8
proponent has: (1) the right to match the lowest or most
advantageous proposal within 30 working days from
note thereof, and (2) in the event that the original
proponent is able to match the lowest or most
advantageous proposal submitted, then it has the right
to be awarded the project. The second right or privilege
is contingent upon the actual exercise by the original
proponent of the first right or privilege. Before the
project could be awarded to the Original proponent, he
must have been able to match the lowest or most
advantageous proposal within the prescribed period.
Hence, when the original proponent is able to timely
matched the lowest or most advantageous propos. With
all things being equal, it shall enjoy preference in the
awarding of the infrastracture project.
It is without question that in a situation where
there’s no other competitive bid submitted for the BOT
project that the project would be awarded to the
original proponent thereof. However, when there are
competitive bids submitted, the original proponent must
be able to match the most advantageous or lowest bid;
only when it is able to do so will the original proponent
enjoy the preferential right to the award of the project
over the other bidder.
It is already an established fact in AGAN V.
PIATCO (2004) that AC failed to match the more
advantageous proposal submitted by PIATCO by the lime
the 30-day working period expired on 28 November
1996.8 and since it did not exercise its right to match the
most advantageous proposal within the prescribed
period, it cannot assert its right to be awarded the
project.
Facts: AEDC submitted an unsolicited proposal (original
proponent) to the Government through the
DOTC/[Manila International Airport Authority (MIAA)]
for the development of NAIA International Passenger
Terminal III (NAIA IPT III) under a build-operate-and-
transfer arrangement pursuant to RA 6957 as amended
by RA 7718 (BOT Law).
The consortium composed of People's Air Cargo and
Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds
Services, Inc. (PAGS) and Security Bank Corp. (Security
Bank) (collectively, Paircargo Consortium) also
submitted their competitive proposal to the PBAC. PBAC
awarded the project to Paircargo. AEDC objected.
 REMEDIAL LAW I (BRONDIAL)
In Agan Case, SC rules that in view of the absence of the
requisite financial capacity of the Paircargo Consortium,
predecessor of respondent PIATCO, the award by the
PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void.
In Gingoyon Case, Government filed an expropriation
case as regards NAIA IPT III, which the Court granted.
Because of these rulings, AEDC claims that, being the
recognized and unchallenged original proponent of the
NAIA IPT III Project, it has the exclusive, clear, and
vested statutory right to the award thereof.
A petition for mandamus was filed by AEDC.
Substantial Issue: AEDC is not entitled to a writ
of mandamus, there being no specific, certain, and clear
legal right to be enforced, nor duty to be performed
that is clearly and peremptorily enjoined by law or by
reason of official station. While the Court may concede
that AEDC, as the original proponent, already expended
resources in its preparation and negotiation of its
unsolicited proposal, the mere fact thereof does not
entitle it to the instant award of the NAIA IPT III Project.
AEDC was aware that the said project would have to
undergo public bidding, and there existed the possibility
that another proponent may submit a more
advantageous bid which it cannot match; in which case,
the project shall be awarded to the other proponent
and AEDC would then have no means to recover the
costs and expenses it already incurred on its unsolicited
proposal. It was a given business risk that AEDC
knowingly undertook.
Procedural Issues:
Late filing
The present claim of AEDC is rooted in the Decision of
this Court in Agan. However, AEDC filed the Petition at
bar only 20 months after the promulgation of the
Decision in Agan on 5 May 2003. As the revised Rules
now stand, a petition for certiorari may be filed within
60 days from notice of the judgment, order or
resolution sought to be assailed.42 Reasonable time for
filing a petition for mandamus should likewise be for the
same period. The filing by the AEDC of its petition
for mandamus 20 months after its supposed right to the
project arose is evidently beyond reasonable time and
negates any claim that the said petition for the
9
extraordinary writ was the most expeditious and speedy
remedy available to AEDC.
Res judicata
AEDC's Petition is that it is already barred by res
judicata. AEDC entered into a compromise agreement
with the Government.
Because of the compromise agreement among the
parties, there was accordingly a judicial settlement of
the controversy, and the Order, dated 30 April 1999, of
the RTC of Pasig City was no less a judgment on the
merits which may be annulled only upon the ground of
extrinsic fraud. Thus, the RTC of Pasig City, in the same
Order, correctly granted the dismissal of Civil Case No.
66213 with prejudice. AEDC, however, invokes the
purported pressure exerted upon it by then President
Joseph E. Estrada, the alleged fraud committed by the
DOTC, and paragraph 2 in the afore-quoted Joint
Motion to Dismiss to justify the non-application of the
doctrine of res judicata to its present Petition.
There is res judicata because:
First, the Order of the RTC of Pasig City, dismissing Civil
Case No. 66213, was issued on 30 April 1999. The Joint
Motion to Dismiss, deemed a compromise agreement,
once approved by the court is immediately executory
and not appealable.
Second, the Order of the RTC of Pasig City dismissing
Civil Case No. 66213 pursuant to the Joint Motion to
Dismiss filed by the parties constitutes a judgment on
the merits.
Third, there is no question as to the jurisdiction of the
RTC of Pasig City over the subject matter and parties in
Civil Case No. 66213. The RTC can exercise original
jurisdiction over cases involving the issuance of writs
of certiorari, prohibition,mandamus, quo
warranto, habeas corpus and injunction. To recall, the
Petition of AEDC before the RTC of Pasig City was for
the declaration of nullity of
proceedings, mandamus and injunction. The RTC of
Pasig City likewise had jurisdiction over the parties,
with the voluntary submission by AEDC and proper
service of summons on the DOTC Secretary and the
PBAC Chairman and members.
 REMEDIAL LAW I (BRONDIAL)
Lastly, there is, between Civil Case No. 66213 before the
RTC of Pasig City and the Petition now pending before
this Court, an identity of parties, of subject matter, and
of causes of action.
Agan vs PIATCO: The contract for the construction and
operation for the NAIA IPT III was awarded to PIATCO.
Petitioners, who are employees of service providers at
the MIAA and NAIA Terminal I and II, and service
providers themselves, assail:
a. the provisions in the 1997 Concession Agreement
and the ARCA which grant PIATCO the exclusive
right to operate a commercial international
passenger terminal within the Island of Luzon,
except those international airports already existing
at the time of the execution of the agreement.
b. The contracts further provide that upon the
commencement of operations at the NAIA IPT III,
the Government shall cause the closure of Ninoy
Aquino International Airport Passenger Terminals I
and II as international passenger terminals.
c. With respect to existing concession agreements
between MIAA and international airport service
providers regarding certain services or operations,
the 1997 Concession Agreement and the ARCA
uniformly provide that such services or operations
will not be carried over to the NAIA IPT III and
PIATCO is under no obligation to permit such carry
over except through a separate agreement duly
entered into with PIATCO.
d. With respect to the petitioning service providers
and their employees, upon the commencement of
operations of the NAIA IPT III, they allege that they
will be effectively barred from providing
international airline airport services at the NAIA
Terminals I and II as all international airlines and
passengers will be diverted to the NAIA IPT III. The
petitioning service providers will thus be compelled
to contract with PIATCO alone for such services,
with no assurance that subsisting contracts with
MIAA and other international airlines will be
respected.
Respondent PIATCO further alleges that this Court is
without jurisdiction to review the instant cases as
10
factual issues are involved which this Court is ill-
equipped to resolve.
Moreover, PIATCO alleges that submission of this
controversy to this Court at the first instance is a
violation of the rule on hierarchy of courts. They
contend that trial courts have concurrent jurisdiction
with this Court with respect to a special civil action for
prohibition and hence, following the rule on hierarchy
of courts, resort must first be had before the trial
courts. Further, arbitration proceedings filed by PIATCO
have already commenced.
Issue: Whether direct resort to the Supreme Court was a
proper remedy;
Ruling:
YES. The rule on hierarchy of courts will not also
prevent this Court from assuming jurisdiction over the
cases at bar. The said rule may be relaxed when the
redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling
circumstances justify availment of a remedy within and
calling for the exercise of this Court’s primary
jurisdiction. It is easy to discern that exceptional
circumstances exist in the cases at bar that call for the
relaxation of the rule. Both petitioners and respondents
agree that these cases are of transcendental
importance as they involve the construction and
operation of the country’s premier international airport.
Moreover, the crucial issues submitted for resolution
are of first impression and they entail the proper legal
interpretation of key provisions of the Constitution, the
BOT Law and its Implementing Rules and Regulations.
Thus, considering the nature of the controversy before
the Court, procedural bars may be lowered to give way
for the speedy disposition of the instant cases.
Liga ng mga Barangay vs Atienza: Liga is the national
organization of all the barangays in the Philippines,
which pursuant to Section 492 of RA No. 7160 (LGC),
constitutes the duly elected presidents of highly-
urbanized cities, provincial chapters, the metropolitan
Manila Chapter, and metropolitan political subdivision
chapters.
Section 493 of that law provides that “the liga at the
municipal, city, provincial, metropolitan political
subdivision, and national levels directly elect a
 REMEDIAL LAW I (BRONDIAL)
president, a vice-president, and 5 members of the board
of directors.” All other matters not provided for in the
law affecting the internal organization of the leagues of
LGUs shall be governed by their respective constitution
and by-laws, which must always conform to the
provisions of the Constitution and existing laws. Liga
adopted and ratified its own Constitution and By-laws to
govern its internal organization. Liga adopted and
ratified its own Election Code. Liga came out with its
Calendar of Activities and Guidelines in the
Implementation of the Liga Election Code of 2002,
setting the synchronized elections for highly urbanized
city chapters, such as the Liga Chapter of Manila,
together with independent component city, provincial,
and metropolitan chapters.
Respondent City Council of Manila enacted Ordinance
No. 8039, Series of 2002, providing for the election of
representatives of the District Chapters in the City
Chapter of Manila and setting the elections for both
chapters 30 days after the barangay elections. Liga sent
respondent Mayor of Manila a letter requesting him
that said ordinance be vetoed considering that it
encroached upon, or even assumed, the functions of the
Liga through legislation, a function which was clearly
beyond the ambit of the powers of the City Council.
Mayor signed and approved the city ordinance.
Issue:
Whether or not the Liga properly filed the case directly
with the Supreme Court.
Ruling:
No. Although the instant petition is styled as a petition
for certiorari, in essence, it seeks the declaration by this
Court of the unconstitutionality or illegality of the
questioned ordinance and executive order. It, thus,
partakes of the nature of a petition for declaratory relief
over which this Court has only appellate, not original,
jurisdiction. As such, this petition must necessary fail, as
this Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of
law are involved.
Even granting arguendo that the present petition is ripe
for the extraordinary writ of certiorari, there is here a
clear disregard of the hierarchy of courts. No special and
important reason or exceptional and compelling
circumstance has been adduced by the petitioner or the
11
intervenor why direct recourse to this Court should be
allowed.
This Court’s original jurisdiction to issue a writ of
certiorari (as well as of prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not
exclusive, but is concurrent with the RTC and CA in
certain cases.
People v. Cuaresma: This concurrence of jurisdiction is
not to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of
the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves
as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard
of that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against
first level (“inferior”) courts should be filed with the
RTC, and those against the latter, with the CA. A direct
invocation of the SC’s original jurisdiction to issue these
writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set
out in the petition. This is a policy necessary to prevent
inordinate demands upon SC’s time and attention which
are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the
Court’s docket.
Santiago v. Vasquez: the propensity of litigants and
lawyers to disregard the hierarchy of courts in our
judicial system by seeking relief directly from this Court
must be put to a halt for two reasons: (1) it would be an
imposition upon the precious time of this Court; and (2)
it would cause an inevitable and resultant delay,
intended or otherwise, in the adjudication of cases,
which in some instances had to be remanded or
referred to the lower court as the proper forum under
the rules of procedure, or as better equipped to resolve
the issues because this Court is not a trier of facts.
SC will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts,
and exceptional and compelling circumstances justify
the availment of the extraordinary remedy of writ of
certiorari, calling for the exercise of its primary
jurisdiction. Petitioner’s reliance on Pimentel v. Aguirre
is misplaced because the non-observance of the
 REMEDIAL LAW I (BRONDIAL)
hierarchy-of-courts rule was not an issue therein.
Besides, what was sought to be nullified in the petition
for certiorari and prohibition therein was an act of the
President, which would have greatly affected all LGUs.
When an act of the legislative department is seriously
alleged to have infringed the Constitution, settling the
controversy becomes the duty of this Court. The same
is true when what is seriously alleged to be
unconstitutional is an act of the President, who in our
constitutional scheme is coequal with Congress.
Hannah Serrana vs Sandiganbayan: Petitioner was a
student of the UP-Cebu (government scholar) appointed
by President Joseph Estrada as a student regent of UP,
to serve a one-year term. Petitioner, with her siblings
and relatives, registered with the SEC the Office of the
Student Regent Foundation, Inc. (OSRFI). One of the
projects of the OSRFI was the renovation of the Vinzons
Hall Annex. Estrada gave P15,000,000 to the OSRFI as
financial assistance for the proposed renovation. The
source of the funds was the Office of the President. The
renovation of Vinzons Hall Annex failed to materialize.
The succeeding student regent filed a complaint for
Malversation of Public Funds and Property with the
Office of the Ombudsman. Ombudsman found probable
cause to indict petitioner and her brother Jade Ian
Serana for estafa.
Petitioner moved to quash the information: (a) the
Sandiganbayan has no jurisdiction over estafa; (b)
petitioner is not a public officer with Salary Grade 27
and she paid her tuition fees; (c) the offense charged
was not committed in relation to her office; (d) the
funds in question personally came from President
Estrada, not from the government.
Sandiganbayan denied petitioner’s motion for lack of
merit. Accused-movant’s claim that being merely a
member in representation of the student body, she was
never a public officer since she never received any
compensation nor does she fall under Salary Grade 27,
is of no moment, in view of the express provision of
Section 4 of RA No. 8249 which provides:
Sec. 4. Jurisdiction – The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
(A) x x x (1) Officials of the executive branch occupying
the positions of regional director and higher, otherwise
12
classified as Grade "27" and higher, of the
Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
x x x x (g) Presidents, directors or trustees, or managers
of government-owned or controlled corporations, state
universities or educational institutions or foundations.
Thus, Sandiganbayan has original exclusive jurisdiction
over all offenses involving the officials enumerated in
subsection (g), irrespective of their salary grades,
because the primordial consideration in the inclusion of
these officials is the nature of their responsibilities and
functions.
Issue
Whether or not the Sandiganbayan may try a
government scholaran** accused, along with her
brother, of swindling government funds.
Ruling:
Yes. The jurisdiction of the Sandiganbayan is set by P.D.
No. 1606, as amended, not by R.A. No. 3019, as
amended. R.A. No. 3019 is a penal statute approved on
August 17, 1960. The said law represses certain acts of
public officers and private persons alike which
constitute graft or corrupt practices or which may lead
thereto. Pursuant to Section 10 of R.A. No. 3019, all
prosecutions for violation of the said law should be filed
with the Sandiganbayan. R.A. No. 3019 does not contain
an enumeration of the cases over which the
Sandiganbayan has jurisdiction. In fact, Section 4 of R.A.
No. 3019 erroneously cited by petitioner, deals not with
the jurisdiction of the Sandiganbayan but with
prohibition on private individuals. P.D. No. 1606, as
amended, defines the jurisdiction of the
Sandiganbayan while R.A. No. 3019, as amended,
defines graft and corrupt practices and provides for
their penalties.
Petitioner UP student regent is a public officer.
Petitioner claims that she is not a public officer with
Salary Grade 27; she is, in fact, a regular tuition fee-
paying student. This is bereft of merit. It is not only the
salary grade that determines the jurisdiction of the
Sandiganbayan. The Sandiganbayan also has jurisdiction
over other officers enumerated in P.D. No. 1606. While
the first part of Section 4(A) covers only officials with
Salary Grade 27 and higher, its second part specifically
 REMEDIAL LAW I (BRONDIAL)
includes other executive officials whose positions may
not be of Salary Grade 27 and higher but who are by
express provision of law placed under the jurisdiction of
the said court. Petitioner falls under the jurisdiction of
the Sandiganbayan as she is placed there by express
provision of law.
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the
Sandiganbayan with jurisdiction over Presidents,
directors or trustees, or managers of government-
owned or controlled corporations, state universities or
educational institutions or foundations. Petitioner falls
under this category. As the Sandiganbayan pointed out,
the BOR performs functions similar to those of a board
of trustees of a non-stock corporation. By express
mandate of law, petitioner is, indeed, a public officer as
contemplated by P.D. No. 1606. Moreover, it is well
established that compensation is not an essential
element of public office. At most, it is merely incidental
to the public office. The administration of the UP is a
sovereign function in line with Article XIV of the
Constitution. UP performs a legitimate governmental
function by providing advanced instruction in literature,
philosophy, the sciences, and arts, and giving
professional and technical training. Moreover, UP is
maintained by the Government and it declares no
dividends and is not a corporation created for profit.
The offense charged was committed in relation to public
office, according to the Information. Petitioner argues
that even assuming that she is a public officer, the
Sandiganbayan would still not have jurisdiction over the
offense because it was not committed in relation to her
office. According to petitioner, she had no power or
authority to act without the approval of the BOR. She
adds there was no Board Resolution issued by the BOR
authorizing her to contract with then Estrada; and that
her acts were not ratified by the governing body of the
state university. Resultantly, her act was done in a
private capacity and not in relation to public office.
It is axiomatic that jurisdiction is determined by the
averments in the information. More than that,
jurisdiction is not affected by the pleas or the theories
set up by defendant or respondent in an answer, a
motion to dismiss, or a motion to quash. Otherwise,
jurisdiction would become dependent almost entirely
upon the whims of defendant or respondent.
13
The information alleged, in no uncertain terms that
petitioner, being then a student regent of U.P., "while in
the performance of her official functions, committing
the offense in relation to her office and taking
advantage of her position, with intent to gain,
conspiring with her brother, JADE IAN D. SERANA, a
private individual, did then and there wilfully, unlawfully
and feloniously defraud the government x x x."
Clarit Garcia vs Sandiganbayan: To recover unlawfully
acquired funds and properties in the amount of
P143,052,015.29 that retired Maj. Gen. Carlos F. Garcia,
his wife, petitioner Clarita, children Ian Carl, Juan Paulo
and Timothy Mark had allegedly amassed and acquired,
the Republic, through the Office of the Ombudsman
(OMB), pursuant to RA 1379, filed with the
Sandiganbayan (SB) on October 29, 2004 a petition for
the forfeiture of those properties. Civil Case No. 0193
was followed by the filing of another forfeiture case,
docketed as Civil Case No. 0196, this time to recover
funds and properties amounting to P202,005,980.55.
Civil Case No. 0196 would eventually be raffled also to
the Fourth Division of the SB. Civil Case No. 0193 shall
be referred to as Forfeiture I and Civil Case No. 0196 as
Forfeiture II.
Prior to the filing of Forfeiture II, but subsequent to the
filing of Forfeiture I, the OMB charged the Garcias and 3
others with violation of RA 7080 (plunder) under an
Information dated April 5, 2005 which placed the value
of the property and funds plundered at
P303,272,005.99. Docketed as Crim. Case No. 28107,
the Information was raffled off to the Second Division of
the SB. The plunder charge, as the parties’ pleadings
seem to indicate, covered substantially the same
properties identified in both forfeiture cases.
Issue 1:
Whether or not SB 4Th Division has jurisdiction over the
subject matter of Forfeitures I and II as both cases are
covered or included in the plunder case against the
Garcias.
Ruling:
Yes, the plunder case did not absorb the forfeiture
cases. Petitioner claims that the filing of the main
plunder case, with its automatic forfeiture mechanism
in the event of conviction, ousted the SB 4th Division of
its jurisdiction over the subject matter of the forfeiture
 REMEDIAL LAW I (BRONDIAL)
cases. The inclusion of the forfeiture cases with the
plunder case is necessary, so petitioner claims, to
obviate possible double jeopardy entanglements and
colliding case dispositions. Prescinding from these
premises, petitioner would ascribe grave abuse of
discretion on the SB 4th Division for not granting its
separate motions to dismiss the 2 forfeiture petitions
and/or to consolidate them with the plunder case on
the foregoing ground.
Petitioner’s posture respecting Forfeitures I and II being
absorbed by the plunder case, thus depriving the 4th
Division of the SB of jurisdiction over the civil cases, is
flawed by the assumptions holding it together, the first
assumption being that the forfeiture cases are the
corresponding civil action for recovery of civil liability ex
delicto. As correctly ruled by the SB 4th Division in its
May 20, 2005 Resolution, the civil liability for forfeiture
cases does not arise from the commission of a criminal
offense, thus:
Such liability is based on a statute that safeguards the
right of the State to recover unlawfully acquired
properties. The action of forfeiture arises when a
“public officer or employee *acquires+ during his
incumbency an amount of property which is manifestly
out of proportion of his salary x x x and to his other
lawful income x x x.” Such amount of property is then
presumed prima facie to have been unlawfully acquired.
Thus “if the respondent *public official+ is unable to
show to the satisfaction of the court that he has lawfully
acquired the property in question, then the court shall
declare such property forfeited in favor of the State, and
by virtue of such judgment the property aforesaid shall
become property of the State. x x x
EO 14, Series of 1986, albeit defining only the
jurisdiction over cases involving ill-gotten wealth of
former President Marcos, his immediate family and
business associates, authorizes under its Sec. 3 the filing
of forfeiture suits under RA 1379 which will proceed
independently of any criminal proceedings. The Court,
in Republic v. Sandiganbayan, interpreted this provision
as empowering the Presidential Commission on Good
Government to file independent civil actions separate
from the criminal actions.
A forfeiture case under RA 1379 arises out of a cause of
action separate and different from a plunder case, thus
14
negating the notion that the crime of plunder absorbs
the forfeiture cases. In a prosecution for plunder, what
is sought to be established is the commission of the
criminal acts in furtherance of the acquisition of ill-
gotten wealth. On the other hand, all that the court
needs to determine, by preponderance of evidence,
under RA 1379 is the disproportion of respondent’s
properties to his legitimate income, it being
unnecessary to prove how he acquired said properties.
The forfeitable nature of the properties under the
provisions of RA 1379 does not proceed from a
determination of a specific overt act committed by the
respondent public officer leading to the acquisition of
the illegal wealth.
Given the foregoing considerations, petitioner’s thesis
on possible double jeopardy entanglements should a
judgment of conviction ensue in Crim. Case 28107
collapses entirely. Double jeopardy, as a criminal law
concept, refers to jeopardy of punishment for the same
offense, suggesting that double jeopardy presupposes
two separate criminal prosecutions. Proceedings under
RA 1379 are, to repeat, civil in nature. As a necessary
corollary, one who is sued under RA 1379 may be
proceeded against for a criminal offense. Thus, the
filing of a case under that law is not barred by the
conviction or acquittal of the defendant in Crim. Case
28107 for plunder.
Issue 2:
Whether or not Sandiganbayan acquired jurisdiction
over the persons of petitioner and her children.
Ruling 2:
No. Petitioner argues that the SB did not acquire
jurisdiction over her person and that of her children due
to a defective substituted service of summons. Sec. 7,
Rule 14 of the 1997 Revised Rules of Civil Procedure
clearly provides for the requirements of a valid
substituted service of summons, thus: SEC. 7.
Substituted service.—If the defendant cannot be served
within a reasonable time as provided in the preceding
section [personal service on defendant], service may be
effected (a) by leaving copies of the summons at the
defendant’s residence with some person of suitable age
and discretion then residing therein, or (b) by leaving
the copies at defendant’s office or regular place of
business with some competent person in charge
thereof.
 REMEDIAL LAW I (BRONDIAL)
A court must acquire jurisdiction over a party for the
latter to be bound by its decision or orders. Valid
service of summons, by whatever mode authorized by
and proper under the Rules, is the means by which a
court acquires jurisdiction over a person.
Summons for Forfeitures I and II were served personally
on Maj. Gen. Carlos Flores Garcia, who is detained at
the PNP Detention Center, who acknowledged receipt
thereof by affixing his signature. Substituted service of
summons for both Forfeitures I and II were made on
petitioner and her children through Maj. Gen. Garcia at
the PNP Detention Center. However, such substituted
services of summons were invalid for being irregular and
defective.
In Manotoc v. Court of Appeals, we broke down the
requirements to be:
(1) Impossibility of prompt personal service, i.e., the
party relying on substituted service or the sheriff must
show that defendant cannot be served promptly or
there is impossibility of prompt service within a
reasonable time. Reasonable time being “so much time
as is necessary under the circumstances for a reasonably
prudent and diligent man to do, conveniently, what the
contract or duty requires that should be done, having a
regard for the rights and possibility of loss, if any[,] to
the other party.” Moreover, the sheriff must show
several attempts for personal service of at least 3 times
on at least 2 different dates.
(2) Specific details in the return, i.e., the sheriff must
describe in the Return of Summons the facts and
circumstances surrounding the attempted personal
service.
(3) Substituted service effected on a person of suitable
age and discretion residing at defendant’s house or
residence; or on a competent person in charge of
defendant’s office or regular place of business.
From the foregoing requisites, it is apparent that no
valid substituted service of summons was made on
petitioner and her children, as the service made through
Maj. Gen. Garcia did not comply with the first 2
requirements mentioned above for a valid substituted
service of summons. Moreover, the third requirement
15
was also not strictly complied with as the substituted
service was made not at petitioner’s house or residence
but in the PNP Detention Center where Maj. Gen. Garcia
is detained, even if the latter is of suitable age and
discretion. Hence, no valid substituted service of
summons was made.
The stringent rules on valid service of summons for the
court to acquire jurisdiction over the person of the
defendants, however, admits of exceptions, as when the
party voluntarily submits himself to the jurisdiction of
the court by asking affirmative relief. In the instant case,
the Republic asserts that petitioner is estopped from
questioning improper service of summons since the
improvident service of summons in both forfeiture cases
had been cured by their (petitioner and her children)
voluntary appearance in the forfeiture cases. The
Republic points to the various pleadings filed by
petitioner and her children during the subject forfeiture
hearings. We cannot subscribe to the Republic’s views.
Special appearance to question a court’s jurisdiction is
not voluntary appearance (Sec. 20, Rule 14). The
pleadings filed by petitioner in the subject forfeiture
cases do not show that she voluntarily appeared
without qualification. Petitioner filed the following
pleadings in Forfeiture I: (a) motion to dismiss; (b)
motion for reconsideration and/or to admit answer; (c)
second motion for reconsideration; (d) motion to
consolidate forfeiture case with plunder case; and (e)
motion to dismiss and/or to quash Forfeiture I. And in
Forfeiture II: (a) motion to dismiss and/or to quash
Forfeiture II; and (b) motion for partial reconsideration.
The foregoing pleadings, particularly the motions to
dismiss, were filed by petitioner solely for special
appearance with the purpose of challenging the
jurisdiction of the SB over her person and that of her 3
children. Petitioner asserts therein that SB did not
acquire jurisdiction over her person and of her 3
children for lack of valid service of summons through
improvident substituted service of summons in both
Forfeiture I and Forfeiture II. This stance the petitioner
never abandoned when she filed her motions for
reconsideration, even with a prayer to admit their
attached Answer Ex Abundante Ad Cautelam dated
January 22, 2005 setting forth affirmative defenses with
a claim for damages. And the other subsequent
pleadings, likewise, did not abandon her stance and
 REMEDIAL LAW I (BRONDIAL)
defense of lack of jurisdiction due to improper
substituted services of summons in the forfeiture cases.
Evidently, from the foregoing Sec. 20, Rule 14 of the
1997 Revised Rules on Civil Procedure, petitioner and
her sons did not voluntarily appear before the SB
constitutive of or equivalent to service of summons.
Platinum Tours and Travel, Inc. vs Panlilio: Platinum
filed a complaint for a sum of money with damages
against Pan Asiatic Travel Corporation (PATC) and its
president Nelida Galvez. Platinum sought to collect
payment for the airline tickets which PATC bought from
it. RTC of Makati City, Branch 62, rendered a judgment
by default in favor of Platinum and ordered PATC and
Galvez to solidarily pay Platinum. A writ of execution
was issued on motion of Platinum. Pursuant to the writ,
Manila Polo Club Proprietary Membership Certificate in
the name of Galvez was levied upon and sold.
Jose Panlilio filed a motion to intervene in the Civil Case
claiming that Galvez had executed in his favor a chattel
mortgage over her shares of stock in the Manila Polo
Club to secure her loan and that Galvez had already
delivered to him the stock certificates. RTC denied
Panlilio’s motion for intervention because (1) a decision
had already been rendered in this case and that the only
matters at issue is the propriety of the execution; (2) it
will only delay or prejudice the adjudication of the rights
of the original parties; and, (3) the Intervenor’s rights
may be fully protected in a separate action.
RTC declared the execution sale null and void due to
irregularities in the conduct thereof.
Panlilio filed against Galvez a collection case with
application for a writ of preliminary attachment of the
Manila Polo Club shares. The case was raffled to Branch
146 of the RTC of Makati City. Panlilio again attempted
to intervene in the other Civil Case, this time by
incorporating in his complaint a motion to consolidate
both Civil Cases.
Judge Salvador Tensuan of Branch 146 granted the
motion for consolidation on condition that Judge
Roberto Diokno of Branch 62 would not object thereto.
Judge Diokno allowed the consolidation of the 2 cases
and setting for hearing Panlilio’s application for a writ of
preliminary attachment.
16
Platinum moved to reconsider the order of Judge
Diokno but its motion was denied.
Platinum filed a petition for certiorari at the CA
assailing, among others, the order of Judge Diokno
allowing the consolidation of Civil Cases. CA annulled
the assailed order but left it to Judge Diokno to decide
whether to return the Civil Case to Judge Tensuan, or to
keep it in his docket and decide it as a separate case.
Platinum filed a motion for partial reconsideration of
the decision of the CA, praying that the Civil Case be
returned to Branch 146 or re-raffled to another RTC
Branch of Makati. Said motion was denied.
Issue:
Whether or not RTC-Branch 62’s basis for acquiring
jurisdiction over the civil case was extinguished when
Judge Diokno’s July 23, 1996 order allowing the
consolidation of the two cases was annulled and set
aside.
Ruling:
No. Since jurisdiction is the power to hear and
determine a particular case, it does not depend upon
the regularity of the exercise by the court of that power
or on the correctness of its decisions.
Panlilio’s collection case falls within the jurisdiction of
the RTC of Makati, Branch 62. The fact that the CA
subsequently annulled Judge Diokno’s order granting
the consolidation, did not affect the jurisdiction of the
court which issued the said order.
“Jurisdiction” should be distinguished from the
“exercise of jurisdiction.” Jurisdiction refers to the
authority to decide a case, not the orders or the
decision rendered therein. Accordingly, where a court
has jurisdiction over the person and the subject matter,
as in the instant case, the decision on all questions
arising from the case is but an exercise of such
jurisdiction. Any error that the court may commit in the
exercise of its jurisdiction is merely an error of judgment
which does not affect its authority to decide the case,
much less divest the court of the jurisdiction over the
case.
Moreover, the instant petition is premature and
speculative. Had Platinum waited until Judge Diokno
decided on what to do with Civil Case No. 96-365, the
 REMEDIAL LAW I (BRONDIAL)
parties would have been spared the trouble and the
expense of seeking recourse from this Court, which in
turn would have had one petition less in its docket. The
unfounded fear that Civil Case No. 96-365 would unduly
delay the final resolution of Civil Case No. 94-1634, if
the former were retained by Branch 62, made Platinum
act with haste.
Manila Bankers vs Ng Kok Wei: Respondent Eddy Ng
Kok Wei is a Singaporean businessman who ventured
into investing in the Philippines. On November 29,
1988, respondent, in a Letter of Intent addressed to
petitioner, expressed his intention to purchase a
condominium unit at Valle Verde Terraces. On
December 5, 1988, respondent paid petitioner a
reservation fee of P50,000 for the purchase of a 46-
square meter condominium unit valued at P860,922.00.
On January 16, 1989, respondent paid 90% of the
purchase price or P729,830.00.
Petitioner executed a Contract to Sell in favor of the
respondent. The contract expressly states that the
condominium unit “shall substantially be completed and
delivered” to the respondent “within 15 months” from
February 8, 1989 or on May 8, 1990, and that “(S)hould
there be no substantial completion and fail(ure) to
deliver the unit on the date specified, a penalty of 1% of
the total amount paid (by respondent) shall be charged
against (petitioner)”.
Considering that the stipulated 15-month period was at
hand, respondent returned to the Philippines in April,
1990.
In a letter dated April 5, 1990, petitioner informed
respondent of the substantial completion of his
condominium unit, however, due to various
uncontrollable forces (such as coup d‘ etat attempts,
typhoon and steel and cement shortage), the final
turnover is reset to May 31, 1990.
Meanwhile, on July 5, 1990, upon receipt of petitioner’s
notice of delivery dated May 31, 1990, respondent again
flew back to Manila. He found the unit still
uninhabitable for lack of water and electric facilities.
Once more, petitioner issued another notice to move-in
addressed to its building administrator advising the
17
latter that respondent is scheduled to move in on
August 22, 1990.
On October 5, 1990, respondent returned to the
Philippines only to find that his condominium unit was
still unlivable. Exasperated, he was constrained to send
petitioner a letter dated November 21, 1990 demanding
payment for the damages he sustained. Petitioner
ignored such demand, prompting respondent to file
with the RTC, Makati City, a complaint against the
former for specific performance and damages.
During the pendency of the case, respondent finally
accepted the condominium unit and on April 12, 1991,
occupied the same. Thus, respondent’s cause of action
has been limited to his claim for damages.
RTC found petitioner liable for payment of damages due
to the delay in the performance of its obligation to the
respondent. CA affirmed and denied the MR.
Issue:
Whether or not RTC has jurisdiction over the case.
Ruling:
Yes. On petitioner’s contention that the RTC has no
jurisdiction over the instant case, Section 1 (c) of PD No.
1344, as amended, provides:
“SECTION 1. – In the exercise of its functions to regulate
the real estate trade and business and in addition to its
powers provided for in Presidential Decree No. 957, the
National Housing Authority [now Housing and Land Use
Regulatory Board (HLURB) shall have exclusive
jurisdiction to hear and decide cases of the following
nature: x x x
C. Cases involving specific performance of contractual
and statutory obligations filed by buyers of subdivision
lots or condominium units against the owner,
developer, dealer, broker or salesman. x x x.”
Thus, it is the HLURB which has jurisdiction. We have
consistently held that complaints for specific
performance with damages by a lot or condominium
unit buyer against the owner or developer falls under
the exclusive jurisdiction of the HLURB.
 REMEDIAL LAW I (BRONDIAL)
While it may be true that the RTC is without jurisdiction
over the case, petitioner’s active participation in the
proceedings estopped it from assailing such lack of it. It
is an undesirable practice of a party participating in the
proceedings and submitting its case for decision and
then accepting the judgment, only if favorable, and
attacking it for lack of jurisdiction, when adverse.
Here, petitioner failed to raise the question of
jurisdiction before the RTC and CA. In effect, petitioner
confirmed and ratified RTC’s jurisdiction over this case.
Certainly, it is now in estoppel and can no longer
question the RTC’s jurisdiction.
GSIS vs Santiago: Deceased spouses Jose Zulueta and
Soledad Ramos obtained various loans secured by 4 real
estate mortgages from GSIS (Period: Sept. 1956 – Oct.
1957; Amount: 3.1M). They failed to pay so GSIS
foreclosed the mortgages.
Some of these properties were later sold in a public
auction at a bid price of 5.2M. 91 lots were expressly
excluded from the auction since the lots were sufficient
to pay for all the mortgage debts. The sale was
annotated in such a way that the excluded lots from the
auction are specifically indicated.
An Affidavit of Consolidation of Ownership was
executed by defendant GSIS over Zulueta’s lots,
including the lots, which as earlier stated, were already
excluded from the foreclosure. GSIS sold these
properties to Yorkstown Development Corporation
which sale was disapproved by the Office of the
President. The sold properties were returned to GSIS
and they began disposing every lot.
Antonio Zulueta and Eduardo Santiago (represented
Zulueta) executed an agreement whereby the former
transferred all his rights and interests over the excluded
lots. Pursuant to this agreement, Santiago wrote a
demand letter to GSIS for the return of 81 excluded lots.
Reconveyance (RTC): GSIS argues that the action was
barred by Statute of Limitations and/or Laches, and that
the complaint did not state a cause of action. Santiago
died during the pendency of the trial so his wife
replaced him. Court decided in favor of Santiago – 78
lots (sorry hindi inexplain ng case kung bakit pabawas ng
pabawas yung lots). CA affirmed. MR denied.
18
GSIS argues: (1) that there was no proof of bad faith nor
could fraud or malice be attributed to the petitioner
when it erroneously caused the issuance of certificates
of title over the subject lots despite the fact that these
were expressly excluded from the foreclosure sale; (2)
an action for reconveyance based on implied or
constructive trust prescribes in ten years from the time
of its creation or upon the alleged fraudulent
registration of the property, in this case when the
ownership was consolidated to GSIS. The action was
instituted more than fourteen years later; (3) the
properties were not returned because no such
obligation exists under the loan and mortgage
agreement.
SC: At the outset, it bears emphasis that the jurisdiction
of this Court in a petition for review on certiorari under
Rule 45 of the Rules of Court, as amended, is limited to
reviewing only errors of law. This Court is not a trier of
facts. Case law has it that the findings of the trial court
especially when affirmed by the CA are binding and
conclusive upon this Court. Although there are
exceptions to the said rule, we find no reason to deviate
therefrom. By assailing the findings of facts of the trial
court as affirmed by the CA, that it acted in bad faith,
the petitioner thereby raised questions of facts in its
petition.
Katon vs Palanca: DOCTRINE: Where prescription, lack
of jurisdiction or failure to state a cause of action clearly
appear from the complaint filed with the trial court, the
action may be dismissed motu proprio by the Court of
Appeals, even if the case has been elevated for review
on different grounds. Verily, the dismissal of such cases
appropriately ends useless litigations.
Before us is a Petition for Review under Rule 45 of the
Rules of Court, assailing the December 8, 2000 Decision
and the November 20, 2001 Resolution of the Court of
Appeals in CA-GR SP No. 57496.
FACTS: On August 2, 1963, herein Petitioner Katon filed
a request with the District Office of the Bureau of
Forestry in Puerto Princesa, Palawan, for the re-
classification of a piece of real property known as
Sombrero Island. Then Asst. Director of Forestry
informed the Director of Lands, Manila, that since the
subject land was no longer needed for forest purposes,
 REMEDIAL LAW I (BRONDIAL)
the same is therefore certified and released as
agricultural land for disposition under the Public Land
Act.
Records show that on November 8, 1996, [R]espondent
Juan Fresnillo filed a homestead patent application for a
portion of the island. Records also reveal that
[R]espondent Jesus Gapilango filed a homestead
application. Respondent Manuel Palanca, Jr. was issued
Homestead Patent on March 3, 1977 of Sombrero
Island. Respondents aver that they are all bona fide and
lawful possessors of their respective portions and have
declared said portions for taxation purposes and that
they have been faithfully paying taxes thereon for
twenty years. Respondents contend that the petitioner
has no legal capacity to sue insofar as the island is
concerned because an action for reconveyance can
only be brought by the owner and not a mere
homestead applicant and that petitioner is guilty of
estoppel by laches for his failure to assert his right over
the land for an unreasonable and unexplained period
of time.
In the instant case, petitioner seeks to nullify the
homestead patents and original certificates of title
issued in favor of the respondents covering certain
portions of the Sombrero Island as well as the
reconveyance of the whole island in his favor. The
petitioner claims that he has the exclusive right to file
an application for homestead patent over the whole
island since it was he who requested for its conversion
from forest land to agricultural land."
Respondents filed their Answer with Special and/or
Affirmative Defenses and Counterclaim in due time. On
June 30, 1999, they also filed a Motion to Dismiss on the
ground of the alleged defiance by petitioner of the trial
court’s Order to amend his Complaint so he could thus
effect a substitution by the legal heirs of the deceased,
Respondent Gapilango. The Motion to Dismiss was
granted by the RTC in its Order dated July 29, 1999.
Petitioner’s Motion for Reconsideration of the July 29,
1999 Order was denied by the trial court in its
Resolution dated December 17, 1999, for being a third
and prohibited motion. In his Petition for Certiorari
before the CA, petitioner charged the trial court with
grave abuse of discretion on the ground that the denied
19
Motion was his first and only Motion for
Reconsideration of the aforesaid Order.
Ruling of the Court of Appeals: Instead of limiting itself
to the allegation of grave abuse of discretion, the CA
ruled on the merits. In the Assailed Resolution, the CA
acknowledged that it had erred when it ruled on the
merits of the case. Nonetheless, the Complaint was
dismissed motu proprio by the challenged Resolution of
the CA Special Division of five members – with two
justices dissenting – pursuant to its "residual
prerogative" under Section 1 of Rule 9 of the Rules of
Court.
Issues
1. Is the Court of Appeals correct in resolving the
Petition for Certiorari based on an issue not
raised (the merits of the case) in the Petition?
2. Is the Court of Appeals correct in invoking its
alleged ‘residual prerogative’ under Section 1,
Rule 9 of the 1997 Rules of Civil Procedure in
resolving the Petition on an issue not raised in
the Petition?"
The Court’s Ruling: The Petition has no merit.
Propriety of Ruling on the Merits: This is not the first
time that petitioner has taken issue with the propriety
of the CA’s ruling on the merits. The CA even corrected
itself in its November 20, 2001 Resolution. Suffice it to
say that the appellate court indeed acted ultra
jurisdictio in ruling on the merits of the case when the
only issue that could have been, and was in fact, raised
was the alleged grave abuse of discretion committed by
the trial court in denying petitioner’s Motion for
Reconsideration. Settled is the doctrine that the sole
office of a writ of certiorari is the correction of errors of
jurisdiction. Such writ does not include a review of the
evidence, more so when no determination of the merits
has yet been made by the trial court, as in this case.
IMPORTANT! Dismissal for Prescription and Lack of
Jurisdiction: Petitioner has confused what the CA
adverted to as its "residual prerogatives" under Section
1 of Rule 9 of the Rules of Court with the "residual
jurisdiction" of trial courts over cases appealed to the
CA. Under Section 1 of Rule 9 of the Rules of Court,
defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived, except
 REMEDIAL LAW I (BRONDIAL)
when (1) lack of jurisdiction over the subject matter,
(2) litis pendentia, (3) res judicata and (4) prescription
are evident from the pleadings or the evidence on
record. In the four excepted instances, the court shall
motu proprio dismiss the claim or action.
On the other hand, "residual jurisdiction" is embodied in
Section 9 of Rule 41 of the Rules of Court. The "residual
jurisdiction" of trial courts is available at a stage in
which the court is normally deemed to have lost
jurisdiction over the case or the subject matter involved
in the appeal. This stage is reached upon the perfection
of the appeals by the parties or upon the approval of
the records on appeal, but prior to the transmittal of the
original records or the records on appeal.In either
instance, the trial court still retains its so-called residual
jurisdiction to issue protective orders, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal, and allow the withdrawal of
the appeal.
The CA’s motu proprio dismissal of petitioner’s
Complaint could not have been based, therefore, on
residual jurisdiction under Rule 41. Undeniably, such
order of dismissal was not one for the protection and
preservation of the rights of the parties, pending the
disposition of the case on appeal. What the CA
referred to as residual prerogatives were the general
residual powers of the courts to dismiss an action
motu proprio upon the grounds mentioned in Section 1
of Rule 9 of the Rules of Court and under authority of
Section 2 of Rule 1 of the same rules.
Jurisdiction over the subject matter is conferred by law
and is determined by the allegations in the complaint
and the character of the relief sought. The question is,
did the Complaint sufficiently allege an action for
declaration of nullity of the free patent and certificate of
title or, alternatively, for reconveyance? Or did it plead
merely for reversion? The Complaint did not
sufficiently make a case for any of such actions, over
which the trial court could have exercised jurisdiction.
In an action for nullification of title or declaration of its
nullity, the complaint must contain the following
allegations: 1) that the contested land was privately
owned by the plaintiff prior to the issuance of the
assailed certificate of title to the defendant; and 2) that
the defendant perpetuated a fraud or committed a
20
mistake in obtaining a document of title over the parcel
of land claimed by the plaintiff. In these cases, the
nullity arises not from fraud or deceit, but from the fact
that the director of the Land Management Bureau had
no jurisdiction to bestow title; hence, the issued patent
or certificate of title was void ab initio.
In an alternative action for reconveyance, the certificate
of title is also respected as incontrovertible, but the
transfer of the property or title thereto is sought to be
nullified on the ground that it was wrongfully or
erroneously registered in the defendant’s name. As with
an annulment of title, a complaint must allege two facts
that, if admitted, would entitle the plaintiff to recover
title to the disputed land: (1) that the plaintiff was the
owner of the land, and (2) that the defendant illegally
dispossessed the plaintiff of the property. Therefore,
the defendant who acquired the property through
mistake or fraud is bound to hold and reconvey to the
plaintiff the property or the title thereto.
In the present case, nowhere in the Complaint did
petitioner allege that he had previously held title to
the land in question. On the contrary, he
acknowledged that the disputed island was public
land, that it had never been privately titled in his
name, and that he had not applied for a homestead
under the provisions of the Public Land Act. This Court
has held that a complaint by a private party who
alleges that a homestead patent was obtained by
fraudulent means, and who consequently prays for its
annulment, does not state a cause of action; hence,
such complaint must be dismissed.
Neither can petitioner’s case be one for reversion.
Section 101 of the Public Land Act categorically
declares that only the solicitor general or the officer in
his stead may institute such an action. A private person
may not bring an action for reversion or any other
action that would have the effect of canceling a free
patent and its derivative title, with the result that the
land thereby covered would again form part of the
public domain.
Consequently, the dismissal of the Complaint is proper
not only because of lack of jurisdiction, but also
because of the utter absence of a cause of action, a
defense raised by respondents in their Answer.(Section
2 of Rule 3 of the Rules of Court)
 REMEDIAL LAW I (BRONDIAL)
Finally, assuming that petitioner is the proper party to
bring the action for annulment of title or its
reconveyance, the case should still be dismissed for
being time-barred. Clearly, the suit was brought way
past ten years from the date of the issuance of the
Certificate, the prescriptive period for reconveyance of
fraudulently registered real property.
Pecson vs COMELEC: Pecson and Cunanan were
candidates for the mayoralty position in the
Municipality of Magalang, Province of Pampanga in the
May 2007 elections. Cunanan was proclaimed the
winning candidate, garnering a total of 12,592 votes as
against Pecson’s 12,531, or a margin of 61 votes.
Cunanan took his oath and assumed the position of
Mayor of Magalang. Soon thereafter, Pecson filed an
election protest with the RTC.
The RTC rendered a Decision in Pecson’s favor. The RTC
ruled that Pecson received a total of 14,897 votes as
against Cunanan’s 13,758 – a vote margin of 1,139.
Cunanan received a copy of the Decision on November
26, 2007 and filed a Notice of Appeal the day after. The
RTC issued on November 27, 2008 an Order noting the
filing of the notice of appeal and the payment of appeal
fee and directing the transmittal of the records of the
case to the Electoral Contests Adjudication Department
(ECAD) of the COMELEC. Pecson, on the other hand,
filed on November 28, 2007 an Urgent Motion for
Immediate Execution Pending Appeal, claiming that
Section 11, Rule 14 of the Rules of Procedure in Election
Contests before the Courts Involving Elective Municipal
and Barangay Officials (Rules) allows this remedy.
The RTC granted Pecson’s motion for execution pending
appeal via a Special Order dated December 3, 2007
(Special Order) but suspended, pursuant to the Rules,
the actual issuance of the writ of execution for twenty
(20) days.
Cunanan filed with the COMELEC a Petition for
Application of Preliminary Injunction with Prayer for
Status Quo Ante Order/Temporary Restraining Order
(TRO) with Prayer for Immediate Raffle. He argued in
his petition that: (1) the RTC Decision did not clearly
establish Pecson’s victory or his (Cunanan’s) defeat – a
requirement of Section 11, Rule 14 of the Rules; among
21
other reasons, the number of votes the RTC tallied and
tabulated exceeded the number of those who actually
voted and the votes cast for the position of Mayor, and
(2) the RTC had constructively relinquished its
jurisdiction by the issuance of the Order dated
November 27, 2007 directing the transmittal of the
records of the case.
The Second Division of the COMELEC issued on January
4, 2008 a 60-day TRO directing: (1) the RTC to cease and
desist from issuing or causing the issuance of a writ of
execution or implementing the Special Order; and (2)
Cunanan to continue performing the functions of Mayor
of Magalang.
The COMELEC’s Second Division denied Cunanan’s
petition in a Resolution dated March 6, 2008. It ruled
that: (1) the resolution of the motion for execution
pending appeal is part of the residual jurisdiction of the
RTC to settle pending incidents; the motion was filed
prior to the expiration of the period to appeal and while
the RTC was still in possession of the original record;
and (2) there is good reason to justify the execution of
the Decision pending appeal, as Pecson’s victory was
clearly and manifestly established.
Pecson thus asked for the issuance of a writ of
execution via an Ex-Parte Motion. Despite Cunanan’s
opposition, the RTC granted Pecson’s motion and issued
the writ of execution on March 11, 2008. Pecson
thereafter assumed the duties and functions of Mayor
of Magalang.
On Cunanan’s motion, the COMELEC en banc issued its
Resolution dated May 21, 2008 reversing the ruling of
the Second Division insofar as it affirmed the RTC’s
findings of good reasons to execute the decision
pending appeal. It affirmed the authority of the RTC to
order execution pending appeal; it however nullified the
March 11, 2008 writ of execution on the ground that
the RTC could no longer issue the writ because it had
lost jurisdiction over the case after transmittal of the
records and the perfection of the appeals of both
Cunanan and Pecson (to be accurate, the lapse of
Pecson’s period to appeal).
Threatened to be unseated, Pecson asked, as interim
relief, for the issuance of a Status Quo Order.
 REMEDIAL LAW I (BRONDIAL)
ISSUE
Whether or not the writ of execution the RTC issued on
March 11, 2008 was void because the RTC could no
longer issue the writ because of the lapse of the period
for appeal, and because the RTC no longer held the
records of the election contest which had then been
transmitted to the ECAD-COMELEC.
HELD
No. The writ of execution issued by the RTC is a mere
administrative enforcement medium of the Special
Order – the main order supporting Pecson’s motion for
the issuance of a writ of execution. The writ itself
cannot and does not assume a life of its own
independent from the Special Order on which it is
based. Certainly, its nullification does not carry with it
the nullification of the Special Order. This consequence
does not of course hold true in the reverse situation –
the nullification of the Special Order effectively carries
with it the nullification of its implementing writ and
removes the basis for the issuance of another
implementing writ. In the present case, the reality is
that if and when we ultimately affirm the validity of the
Special Order, nothing will thereafter prevent the RTC
from issuing another writ.
Another legal reality is that the COMELEC is wrong in its
ruling that the RTC could no longer actually issue the
writ on March 11, 2008 because it no longer had
jurisdiction to do so after the appeal period lapsed and
after the records were transmitted to the ECAD-
COMELEC. That the RTC is still in possession of the
records and that the period to appeal (of both
contending parties) must have not lapsed are important
for jurisdictional purposes if the issue is the authority of
the RTC to grant a Special Order allowing execution
pending appeal; they are requisite elements for the
exercise by the RTC of its residual jurisdiction to validly
order an execution pending appeal, not for the issuance
of the writ itself. This is clearly evident from the cited
provision of the Rules which does not require the
issuance of the implementing writ within the above
limited jurisdictional period. The RTC cannot legally
issue the implementing writ within this limited period
for two reasons: (1) the cited twenty-day waiting period
under Section 11(b); and (2) the mandatory immediate
transmittal of the records to the ECAD of the COMELEC
under Section 10 of the Rules.
22
Other than the clarity of Pecson’s victory under the RTC
Decision, the Special Order cited good and special
reasons that justified an execution pending appeal,
specifically: (1) the need to give as much recognition to
the worth of a trial judge’s decision as that which is
initially given by the law to the proclamation by the
board of canvassers; (2) public interest and/or respect
for and giving meaning to the will of the electorate; and
(3) public policy – something had to be done to deal a
death blow to the pernicious grab-the-proclamation-
prolong-the-protest technique often, if not invariably,
resorted to by unscrupulous politicians who would
render nugatory the people’s verdict against them.
The term for mayor consists of only three (3) years. One
year and six months has lapsed since the May 2007
election; thus, less than two years are left of the elected
mayor’s term. The election protest, while already
decided at the RTC level, is still at the execution-
pending-appeal stage and is still far from the finality of
any decision on the merits, given the available appellate
remedies and the recourses available through special
civil actions.
II. RULES 1 TO 5 (inc. 1991 Revised Rule on Summary
Procedure)
A. Actions: meaning and commencement
When is an action commenced? Upon the timely
payment of the correct docket fees.
Rule 1, Section 5. Commencement of action. — A civil
action is commenced by the filing of the original
complaint in court. If an additional defendant is
impleaded in a later pleading, the action is commenced
with regard to him on the dated of the filing of such
later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court.
Ruby Shelter Builders & Realty Dev. Corp. vs Formaran:
Petitioner obtained a loan from respondents Romeo Tan
and Roberto Obiedo, secured by REM. In a MOA, Tan
and Obiedo granted petitioner an extension. In the
event that petitioner is able to redeem any of the
parcels of land, the Deed of Absolute Sale covering the
said property shall be nullified and have no force and
 REMEDIAL LAW I (BRONDIAL)
effect; and Tan and Obiedo shall then return the
owner’s duplicate of the TCT to petitioner and also
execute a Deed of Discharge of Mortgage. However, if
petitioner is unable to redeem the parcels of land within
the period, Tan and Obiedo could already present the
Deeds of Absolute Sale to the Register of Deeds so Tan
and Obiedo could acquire TCTs to the properties in their
names.
Upon filing its Complaint with the RTC, petitioner paid
P13,644.25 for docket and other legal fees, as assessed
by the Office of the Clerk of Court. The Clerk of Court
initially considered the case as an action incapable of
pecuniary estimation and computed the docket and
other legal fees due thereon according to Section
7(b)(1), Rule 141 of the Rules of Court.
Tan filed before the RTC an Omnibus Motion in which
he contended that the Civil Case involved real
properties, the docket fees for which should be
computed in accordance with Section 7(a), not Section
7(b)(1), of Rule 141 of the Rules of Court, as amended
by A.M. No. 04-2-04-SC. Since petitioner did not pay the
appropriate docket fees, RTC did not acquire
jurisdiction.
Tan asked the RTC to issue an order requiring petitioner
to pay the correct docket fees; and should petitioner fail
to do so, to deny and dismiss the prayer of petitioner for
the annulment of the Deeds of Absolute Sale for having
been executed in contravention of the law or of the
MOA as pactum commisorium. If it was a real action the
docket fees would have been P720,392.60.
SC: Real action. To resolve the issue of whether
petitioner paid the correct docket fees, it is necessary to
determine the true nature of its Complaint. The nature
of an action is determined by the allegations in the body
of the pleading or Complaint itself, rather than by its
title or heading. However, the Court finds it necessary,
in ascertaining the true nature of the Civil Case, to take
into account significant facts and circumstances beyond
the Complaint of petitioner, facts and circumstances
which petitioner failed to state in its Complaint but
were disclosed in the preliminary proceedings before
the court a quo.
Petitioner persistently avers that its Complaint is
primarily for the annulment of the Deeds of Absolute
23
Sale. Based on the allegations and reliefs in the
Complaint alone, one would get the impression that the
titles to the real properties still rest with petitioner; and
that the interest of Tan and Obiedo in the same lies only
in the Deeds of Absolute Sale sought to be annulled.
Petitioner failed to mention in its Complaint that Tan
and Obiedo already had the MOA, which clearly
provided for the execution of the Deeds of Absolute
Sale, registered on the TCTs over the parcels of land,
then still in the name of petitioner. After Tan and
Obiedo had the Deeds of Absolute Sale notarized and
presented to the Register of Deeds, they were already
issued TCTs over the real properties, in their own
names. Tan and Obiedo have also acquired possession
of the properties, enabling them to demolish the
improvements thereon.
It is, thus, suspect that petitioner kept mum about these
facts and circumstances. Even though the MOA was
supposed to have long been registered on its TCTs over
the parcels of land, petitioner did not pray for the
removal of the same as a cloud on its title. In the same
vein, although petitioner alleged that Tan and Obiedo
forcibly took physical possession of the properties,
petitioner did not seek the restoration of such
possession to itself. And despite learning that Tan and
Obiedo already secured TCTs over the properties in their
names, petitioner did not ask for the cancellation of said
titles. The only logical and reasonable explanation is
that petitioner is reluctant to bring to the attention of
the Court certain facts and circumstances, keeping its
Complaint safely worded, so as to institute only an
action for annulment of Deeds of Absolute Sale.
Petitioner deliberately avoided raising issues on the title
and possession of the real properties that may lead the
Court to classify its case as a real action.
The allegations and reliefs petitioner sought in its
Complaint appears to be ultimately a real action,
involving as they do the recovery by petitioner of its title
to and possession of the parcels of land from Tan and
Obiedo. A real action is one in which the plaintiff seeks
the recovery of real property; or, as indicated in what is
now Section 1, Rule 4 of the Rules of Court, a real action
is an action affecting title to or recovery of possession of
real property.
 REMEDIAL LAW I (BRONDIAL)
While it is true that petitioner does not directly seek the
recovery of title or possession of the property, his action
for annulment of sale and his claim for damages are
closely intertwined with the issue of ownership of the
building which, under the law, is considered immovable
property, the recovery of which is petitioner's primary
objective. An action for the annulment or rescission of a
sale of real property does not operate to efface the
fundamental and prime objective and nature of the
case, which is to recover said real property. It is a real
action. Unfortunately, and evidently to evade payment
of the correct amount of filing fee, Manalo never
alleged in the body of his amended petition, much less
in the prayer portion thereof, the assessed value of the
subject res, or, if there is none, the estimated value
thereof, to serve as basis for the receiving clerk in
computing and arriving at the proper amount of filing
fee due thereon, as required under Section 7 of this
Court’s en banc resolution of 04 September 1990.
St. Louis University, Inc. vs Cobarrubias: Cobbarubias is
an associate professor of petitioner and a member of
the Union. She was placed on forced leave by petitioner
pursuant to a provision in the CBA which provides that:
“Section 7.7. For teaching employees in college who fail
the yearly evaluation, the following provisions shall
apply: (a) Teaching employees who are retained for 3
cumulative years in 5 years shall be on forced leave for 1
regular semester during which period all benefits due
them shall be suspended.” Cobbarubias resorted to the
grievance machinery, but failed to resolve the dispute.
Respondent then filed a case for illegal forced leave or
suspension with the NCMB. Parties eventually
submitted the case for VA. VA dismissed the case.
Respondent received the VA’s decision on November
20, 2007.
On December 5, 2007, Cobarrubias filed with the CA a
petition for review under Rule 43, but failed to pay the
required filing fees and to attach to the petition copies
of the material portions of the record. CA dismissed the
petition on January 14, 2008 due to procedural lapses.
Respondent received the CA resolution on January 31,
2008. On February 15, 2008, respondent filed a motion
for reconsideration and attached to her motion copies
of the material portions of the record and the postal
money orders for P4,230.00. She argued that the
ground upon which her petition was dismissed was
technical. CA reinstated her petition finding that
24
respondent substantially complied with the rules by
paying the appeal fee in full and attaching the proper
documents in her motion for reconsideration. SLU
insists that the VA decision had already become final for
failure of respondent to pay the docket fees on time.
SC: Whether or not jurisdiction was acquired by the
appellate court by virtue of the timely filing and
payment of the correct docket fees. Cobarrubias’
petition should NOT be reinstated because of her failure
to pay the appeal fee within the reglementary period.
Appeal is not a natural right but a mere statutory
privilege. Thus, appeal must be made strictly in
accordance with the provision set by law. Rule 43
provides that appeals from the judgment of the VA shall
be taken to the CA, by filing a petition for review within
15 days from the receipt of the notice of judgment.
Furthermore, upon the filing of the petition, the
petitioner shall pay to the CA clerk of court the
docketing and other lawful fees; non-compliance with
the procedural requirements shall be a sufficient ground
for the petition’s dismissal. Thus, payment in full of
docket fees within the prescribed period is not only
mandatory, but also jurisdictional.
Cobarrubias filed her petition for review on December
5, 2007, 15 days from receipt of the VA decision on
November 20, 2007, but paid her docket fees in full only
after 72 days, when she filed her MR on February 15,
2008 and attached the postal money orders
forP4,230.00. Undeniably, the docket fees were paid
late, and without payment of the full docket fees,
Cobarrubias’ appeal was not perfected within the
reglementary period.
Viewed in this light, procedural rules are not to be
belittled or dismissed simply because their non-
observance may have prejudiced a party's substantive
rights; like all rules, they are required to be followed.
However, there are recognized exceptions to their strict
observance, such as: (1) most persuasive and weighty
reasons; (2) to relieve a litigant from an injustice not
commensurate with his failure to comply with the
prescribed procedure; (3) good faith of the defaulting
party by immediately paying within a reasonable time
from the time of the default; (4) the existence of special
or compelling circumstances; (5) the merits of the case;
(6) a cause not entirely attributable to the fault or
negligence of the party favored by the suspension of the
 REMEDIAL LAW I (BRONDIAL)
rules; (7) a lack of any showing that the review sought is
merely frivolous and dilatory; (8) the other party will not
be unjustly prejudiced thereby; (9) fraud, accident,
mistake or excusable negligence without the appellant's
fault; (10) peculiar, legal and equitable circumstances
attendant to each case; (11) in the name of substantial
justice and fair play; (12) importance of the issues
involved; and (13) exercise of sound discretion by the
judge, guided by all “the attendant circumstances. Thus,
there should be an effort, on the part of the party
invoking liberality, to advance a reasonable or
meritorious explanation for his/her failure to comply
with the rules.
No such explanation has been advanced. Other than
insisting that the ends of justice and fair play are better
served if the case is decided on its merits, Cobarrubias
offered no excuse for her failure to pay the docket fees
in full when she filed her petition for review.
Cobarrubias’ omission is fatal to her cause.
In Ruby Shelter, the focus was the payment of the
correct amount of the docket fees; In Cobarrubias, the
emphasis was the timely payment. The court acquires
jurisdiction over the case upon the filing of the
complaint AND timely payment of the correct docket
fees.
Proton Philippines vs Banque Nationale de Paris (BNP):
Proton availed of the credit facilities of BNP and
executed a corporate guarantee of the extent of US$2
million to guarantee its obligation. Under their trust
agreement, Proton would receive imported motor
vehicles and hold them in trust for BNP, to be applied to
its obligations to it in case the vehicles are not sold,
Proton would return them to BNP with the documents
of title.
Proton failed to deliver the proceeds and to return the
unsold motor vehicles. Proton’s guarantors refused to
pay its obligation so BNP filed a complaint ordering
them to pay the initial amount of US$2 million with
accrued interest and other related charges. RTC Makati
Clerk of Court assessed the docket fees at P352,000. The
petitioners filed a motion to dismiss the complaint by
BNP for failure to pay the correct docket fees thus
preventing the RTC from acquiring jurisdiction over the
case. In addition, the petitioners allege the prematurity
25
of the complaint since BNP did not priorly send a
demand letter.
RTC denied the motion to dismiss and the subsequent
MR. The CA denied the appeal by way of certiorari
stating that Section 7(a), Rule 141 of the Rules of Court
excludes interest accruing from the principal amount
being claimed in the pleading in the computation of the
prescribed filing fees. CA denied their MR.
The petitioners argue that pursuant to Administrative
Circular 11-94, interests claimed should be included in
the computation of the docket fees. Thus since BNP
underpaid, RTC never acquired jurisdiction over the
case.
Issues: Should the computation for payment of docket
fees have included the interest claimed by the
complainant? Yes.
Did the trial court fail to acquire jurisdiction over the
case for insufficient docket fees? No.
SC: When the complaint was filed in 1998, Rule 141 had
been amended by Administrative Circular 11-94.
In Manchester Development Corp. vs. CA, this Court
held that the court acquires jurisdiction over any case
only upon payment of the prescribed docket fees.
However, that the ruling in Manchester was clarified in
Sun Insurance Office, Ltd vs. Asuncion when this Court
held that in the former there was an effort to defraud
the government in avoiding to pay the correct docket
fees, whereas in the latter the plaintiff demonstrated his
willingness to abide by paying the additional fees as
required.
Respondent merely relied on the assessment made by
the Clerk of Court which turned out to be incorrect.
Respondent prayed for “accrued interest subsequent to
August 15, 1998 until finally fully paid.” The complaint
having been filed on September 7, 1998, respondent’s
claim includes the interest from August 16, 1998 until
such date of filing. Respondent did not, however, pay
the filing fee corresponding to its claim for interest from
August 16, 1998 until the filing of the complaint on
September 7, 1998. As priorly discussed, this is required
under Rule 141, as amended by Administrative Circular
11-94, which was the rule applicable at the time. Thus,
 REMEDIAL LAW I (BRONDIAL)
as the complaint currently stands, respondent cannot
claim the interest from August 16, 1998 until September
7, 1998, unless respondent is allowed by motion to
amend its complaint within a reasonable time and
specify the precise amount of interest petitioners owe
from August 16, 1998 to September 7, 1998 and pay the
corresponding docket fee.
Rule 2, Section 1. Ordinary civil actions, basis of. —
Every ordinary civil action must be based on a cause of
action.
What is a cause of action?
Rule 2, Section 2. Cause of action, defined. — A cause
of action is the act or omission by which a party violates
a right of another.
Where lies the court of action? In the defendant. Rule 6,
Section 3: The complaint is the pleading alleging the
plaintiff's cause or causes of action. There is a
contradiction. How do you resolve this?
If the cause of action is the act or omission in violation
of the right of the other, it is in the defendant. But the
definition of complaint says it is the plaintiff’s cause of
action. Rule 6 pertains to the remedy of the plaintiff; it’s
not really a cause of action but a right of action. Thus,
the right of action is with the plaintiff. But there can
never be a right of action without the cause of action.
What triggers the right of action is the defendant’s
cause of action because the plaintiff can only go to court
once his right has been violated.
But this has something to do with civil actions. The Rules
govern not only civil actions but also criminal actions
and special proceedings. How do you distinguish?
Rule 1, Section 3. Cases governed. — These Rules shall
govern the procedure to be observed in actions, civil or
criminal and special proceedings.
(a) A civil action is one by which a party sues another for
the enforcement or protection of a right, or the
prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject
to the specific rules prescribed for a special civil action.
26
(b) A criminal action is one by which the State
prosecutes a person for an act or omission punishable
by law.
(c) A special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact.
(Example: settlement of the estate)
In civil actions, there are 5 parties: (1) plaintiff, (2)
defendant, (3) co-defendant, (4) third- fourth- fifth-
party defendant, and (4) intervenor.
In criminal actions, there can only be 2 parties: (1)
Republic of the Philippines, and (2) the accused.
In special proceedings, there is only 1 party: the
petitioner. But when one opposes, he becomes an
oppositor akin to a defendant. Exception: In habeas
corpus, writ of amparo, writ of habeas data and writ of
kalikasan, there must be a respondent.
B. Rule 2
One suit for a single cause of action
Rule 2, Section 3. One suit for a single cause of action.
— A party may not institute more than one suit for a
single cause of action.
Any party to a case can never file 2 cases based on 1 act
or omission by the defendant in violation of the right of
the plaintiff.
If A, the plaintiff, leases unto B a parcel of land for a
period of 5 years. Upon the expiration of the period of 5
years, the obligation of B is to return the parcel of land
to A. B does not return the parcel of land. There is only
one violation: failure to return the parcel of land to A.
How may A violate the principle of one suit for a single
cause of action? If A files (1) an action for the recovery
of the property and (2) another case for damages for
failure to surrender the property.
Splitting a single cause of action
When there is a splitting of a single cause of action,
what is the remedy of B? A motion to dismiss under
Rule 16.
 REMEDIAL LAW I (BRONDIAL)
Rule 16, Section 1, (e) That there is another action
pending between the same parties for the same cause;
Rule 2, Section 4. Splitting a single cause of action;
effect of. — If two or more suits are instituted on the
basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a
ground for the dismissal of the others.
But if judgment has already been rendered, the remedy
of B is motion to dismiss on the ground of res judicata.
Rule 16, Section 1, (f) That the cause of action is barred
by a prior judgment xxx
Joinder of causes vs Joinder of parties
There are 4 requirements for joinder of causes of action:
Rule 2, Section 5. Joinder of causes of action. — A party
may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions:
(a) The party joining the causes of action shall comply
with the rules on joinder of parties;
Rule on joinder of parties: Rule 3, Section 6. Permissive
joinder of parties. — All persons in whom or against
whom any right to relief in respect to or arising out of
the same transaction or series of transactions is alleged
to exist, whether jointly, severally, or in the alternative,
may, except as otherwise provided in these Rules, join
as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common
to all such plaintiffs or to all such defendants may arise
in the action; but the court may make such orders as
may be just to prevent any plaintiff or defendant from
being embarrassed or put to expense in connection with
any proceedings in which he may have no interest.
(b) The joinder shall not include special civil actions or
actions governed by special rules;
(c) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional Trial Court
27
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (Note: This is
called the totality rule)
B, the defendant, borrowed money from A, the plaintiff,
in the amount of P150,000 in January. Again, he
borrowed P150,000 from A in May. By December, B
borrowed P1,000,000 from A secured by real estate
mortgage (Rule 68). May A join his causes of action
against B? Yes. What action? The 1st and 2nd are for sum
of money. The 3rd may be an action for foreclosure or
recovery of the sum of money (P1,000,000).
Suppose A decided to file 3 actions for sums of money,
what is the aggregate amount? P1,300,000. Where
should it be filed? With the RTC.
Is that mandatory on the part of A to file 3 cases against
B? No.
If A chooses to file 3 cases, where would he file them?
1st and 2nd must be filed with the MTC. The 3rd must be
filed with the RTC.
What is the jurisdictional amount under R.A. 7691?
RTC has jurisdiction over:
Real actions:
Assessed value of the property outside Metro Manila >
P20,000
Assessed value of the property inside Metro Manila >
P50,000
Exception: MTC has jurisdiction over forcible entry and
unlawful detainer cases.
Personal actions:
Demand or the value of the property outside Metro
Manila > P100,000
Demand or the value of the property inside Metro
Manila > P200,000
If A joins the causes of action of sum of money, sum of
money and foreclosure of real estate mortgage, is that a
proper joinder of causes of action? No, because Rule 2,
 REMEDIAL LAW I (BRONDIAL)
Section 5 (b) states that the joinder shall not include
special civil actions.
The remedy of B is (NOT A MOTION TO DISMISS) to file a
motion to amend (or omit?) or ex parte to drop. Also
the court itself can drop it because the court cannot
proceed.
Rule 2, Section 6. Misjoinder of causes of action. —
Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action may,
on motion of a party or on the initiative of the court, be
severed and proceeded with separately.
A is a resident of QC and B is a resident of Manila. The
real property which is offered as security in the real
estate mortgage is located in Baguio. Where should the
case be filed/ what is the venue of the action? If 1st
action and 2nd action are for sum of money, 3rd action is
for recovery of real property, can you join them? Yes.
The venue is at the option of the plaintiff. You can join
real and personal actions; there is no prohibition under
joinder of causes of action. However, you cannot join an
ordinary civil action with a special civil action. That has
to be dropped.
C. Parties to Civil Actions
Rule 3, Section 1. Who may be parties; plaintiff and
defendant. — Only natural or juridical persons, or
entities authorized by law may be parties in a civil
action. The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-claimant, or the
third (fourth, etc.) — party plaintiff. The term
"defendant" may refer to the original defending party,
the defendant in a counter-claim, the cross-defendant,
or the third (fourth, etc.) — party defendant.
Who may be parties? Natural persons (what makes you
a natural person is your intellect of will), juridical
persons (those which are created by law like a
corporation), entities authorized by law (ex. estate, or
the totality of a decedent’s assets and liabilities). Still,
they cannot sue until they are real parties in interest.
Rule 3, Section 2. Parties in interest. — A real party in
interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled
to the avails of the suit. Unless otherwise authorized by
28
law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
Who is not a party in interest? A third party in a
contract. In an action for breach of contract, only those
who are privy to the contract are real parties in interest.
Under Rule 3, there are only 2 kinds of parties:
indispensable parties and necessary parties.
Indispensable parties vs necessary parties
An indispensable party is one without whom there can
be no final determination of the case while a necessary
party is one without whom there can be no complete
determination of the case.
Rule 3, Section 6. Permissive joinder of parties. — All
persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law
or fact common to all such plaintiffs or to all such
defendants may arise in the action; but the court may
make such orders as may be just to prevent any plaintiff
or defendant from being embarrassed or put to expense
in connection with any proceedings in which he may
have no interest.
Rule 3, Section 7. Compulsory joinder of indispensable
parties. — Parties in interest without whom no final
determination can be had of an action shall be joined
either as plaintiffs or defendants.
Rule 3, Section 8. Necessary party. — A necessary party
is one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded as
to those already parties, or for a complete
determination or settlement of the claim subject of the
action.
Relucio vs Lopez: Can there be a final determination of
the case without Relucio? Yes. Can there be a complete
determination of the case without Relucio? Yes. The
allegation of the plaintiff is some names were registered
in the name of Relucio. Since they are in the name of
 REMEDIAL LAW I (BRONDIAL)
Relucio, then those properties are outside the scope of
the action.
Lopez filed a petition for appointment as sole
administrator of conjugal properties against Alberto
Lopez and Relucio in RTC Makati. She alleged that she
was legally married to Alberto, but he abandoned her
and their 4 legitimate children, that he arrogated unto
himself full and exclusive control and administration of
the conjugal properties, that he spends such for his sole
benefit, and that after abandoning her, he maintained
an illicit relationship and cohabited with Relucio. During
their cohabitation, they amassed a fortune, and Lopez
alleges that such were acquired principally through the
actual contribution of money, property and industry of
Alberto, with minimal, if not nil, actual contribution
from Relucio. She alleges that Alberto excluded her and
their children from any fruits or income derived from
the conjugal properties. He also allegedly sold,
alienated, etc., properties belonging to the conjugal
partnership.
Relucio filed a Motion to Dismiss; there was no cause of
action against her. MTD was denied; she is impleaded as
a necessary or indispensable party because some of the
properties are registered in her name and Alberto, or
solely in her name. Relucio filed an MR, but was denied.
She filed a petition for certiorari with the CA, who
likewise denied the petition, as well as the subsequent
MR.
SC: Relucio is not an indispensable or necessary party.
The first cause of action is for judicial appointment as
administratrix. The administration of the property of the
marriage is entirely between the spouses, to the
exclusion of all other persons. There is no right-duty
relation between Lopez and Relucio that would support
a cause of action. The second cause of action is for an
accounting, which is arises from or is an incident of
marriage. As Relucio has nothing to do with the
marriage, no cause of action can exist. The third cause
of action is for forfeiture of Alberto's share in the
property mentioned. It does not involve the issue of
validity of the co-ownership between Alberto and
Relucio. The issue is whether there is basis in law to
forfeit Alberto’s share, if any there be, in property co-
owned by him with Relucio. The asserted right to forfeit
extends to Alberto's share alone. Lopez sought support,
but a stranger cannot be compelled to give support. As
29
to the claim for moral damages, the claim is against
Alberto. To sustain a cause of action for moral damages,
the complaint must have the character of an action for
interference with marital or family relations under the
Civil Code.
A real party in interest is one who stands “to be
benefited or injured by the judgment of the suit.”
Relucio would not be affected by any judgment. If
Relucio is not a real party in interest, she cannot be an
indispensable party. An indispensable party is one
without whom there can be no final determination of an
action.
Nor can Relucio be a necessary party in the Special
Proceedings. A necessary party is one who is not
indispensable but who ought to be joined as party if
complete relief is to be accorded those already parties,
or for a complete determination or settlement of the
claim subject of the action.
China Banking Corp vs Oliver: Pangan Lim, Jr. and
Mercedes Oliver (Oliver 1) applied for a loan, offering as
collateral a lot covered by a TCT in the name of Oliver,
which Chinabank approved. The mortgage was duly
registered and annotated on the original title under the
custody of the Registry of Deeds and on the owner’s
duplicate copy in the bank’s possession.
Respondent, claiming that she is Mercedes Oliver (Oliver
2), filed an action for annulment of mortgage and
cancellation of title with damages. Respondent claimed
that: she was the registered and lawful owner of the
land; the owner’s duplicate copy of the title had always
been in her possession; and she did not apply for a loan
or surrender her title to Chinabank. Respondent prayed
that: the owner’s duplicate copy surrendered to
Chinabank as well as the original title with the Registry
of Deeds be cancelled; the mortgage be declared null
and void; and the Registry of Deeds be ordered to issue
a new and clean title in her name.
Chinabank argues that it was indispensable for Oliver 2
to implead mortgagor Oliver 1. Respondent’s complaint
before the trial court was one for cancellation of the
transfer certificate of title in petitioner’s possession.
According to petitioner, the issue below is the
genuineness of the titles, which is intertwined with the
issue of ownership. This being the case, said the
 REMEDIAL LAW I (BRONDIAL)
petitioner, the mortgagor Oliver 1 must necessarily be
impleaded for she is the registered owner. Petitioner
argues that mortgagor Oliver 1 is in a better position to
defend her title. She stands to suffer if it is declared
fake.
SC: Oliver 1 is not an indispensable party. Oliver 1 is a
party in interest, for she will be affected by the outcome
of the case. She stands to be benefited in case the
mortgage is declared valid, or injured in case her title is
declared fake. However, Oliver 1’s absence from the
case does not hamper the trial court in resolving the
dispute between Oliver 2 and petitioner.
Oliver 2’s allegations in the complaint shows that it was
for annulment of mortgage due to petitioner’s
negligence in not determining the actual ownership of
the property, resulting in the mortgage’s annotation on
the TCT in the Registry of Deeds’ custody. To support
said allegations, Oliver 2 had to prove (1) that she is the
real Mercedes Oliver referred to in the TCT, and (2) that
she is not the same person using that name who
entered into a deed of mortgage with the petitioner.
This, Oliver 2 can do in her complaint without
necessarily impleading the Oliver 1. Hence, Oliver 1 is
not an indispensable party in the case filed by Oliver 2.
[T]hat a party is not indispensable to the suit if his
interest in the controversy or subject matter is distinct
and divisible from the interest of the other parties and
will not necessarily be prejudiced by a judgment which
does complete justice to the parties in court. Chinabank
has interest in the loan which, however, is distinct and
divisible from the mortgagor’s interest, which involves
the land used as collateral for the loan. Further, a
declaration of the mortgage’s nullity in this case will not
necessarily prejudice mortgagor Oliver 1. The bank still
needs to initiate proceedings to go after the mortgagor,
who in turn can raise other defenses pertinent to the
two of them.
A party is also not indispensable if his presence would
merely permit complete relief between him and those
already parties to the action, or will simply avoid
multiple litigation, as in the case of Chinabank and
Oliver 1. The latter’s participation in this case will simply
enable Chinabank to make its claim against her in this
case, and hence, avoid the institution of another action.
30
[S]ince Oliver 1 is not an indispensable party, Section 7,
Rule 3, which requires compulsory joinder of
indispensable parties in a case, does not apply. Instead,
it is Section 11, Rule 3, that applies. Non-joinder of
parties is not a ground for dismissal of an action. Parties
may be added by order of the court, either on its own
initiative or on motion of the parties.
Lotte Philippines Co., Inc. vs De la Cruz: Lotte is a
domestic corporation where respondents are among
those who were hired and assigned to the confectionery
facility. On 14 December 1995 - and yearly thereafter
until the year 2000 - 7J Maintenance and Janitorial
Services (7J) entered into a contract with Lotte. In
compliance with the terms and conditions of the service
contract, and to accommodate the needs of Lotte for
personnel/workers to do and perform "piece works,"
respondents, among others, were hired and assigned to
Lotte as repackers or sealers. However, either in
October, 1999 or on February 9, 2000, Lotte dispensed
with their services allegedly due to the
expiration/termination of the service contract by with
7J.
Respondents lodged a labor complaint against Lotte and
7J where the LA rendered judgment declaring 7J as their
employer. On appeal, NLRC affirmed the LA.
Respondents filed a petition for certiorari in the CA,
insisting that their employer is Lotte. Lotte denied that
respondents were its employees and prayed that the
petition be dismissed for failure to implead 7J. CA
reversed and set aside the rulings of the LA and the
NLRC thereby declaring Lotte as the real employer and
that 7J who engaged in labor-only contracting was
merely the agent of Lotte.
Issue: W/N 7J is an indispensable party and should have
been impleaded in respondents’ petition in the CA.
SC: Yes. An indispensable party is a party in interest
without whom no final determination can be had of an
action, and who shall be joined either as plaintiffs or
defendants. The joinder of indispensable parties is
mandatory. The presence of indispensable parties is
necessary to vest the court with jurisdiction, which is
"the authority to hear and determine a cause, the right
to act in a case".
 REMEDIAL LAW I (BRONDIAL)
Without the presence of indispensable parties to a suit
or proceeding, judgment of a court cannot attain real
finality. The absence of an indispensable party renders
all subsequent actions of the court null and void for
want of authority to act, not only as to the absent
parties but even as to those present.
7J is an indispensable party. It is a party in interest
because it will be affected by the outcome of the case.
LA and NLRC found 7J solely liable as the employer. CA
rendered Lotte jointly and severally liable with 7J, who
was not impleaded, by holding that the former is the
real employer. Its decision directly affected 7J.
Navarro vs Escobido: In September 12, 1998,
respondent Karen Go filed 2 complaints before the RTC
for replevin and/or sum of money with damages against
Navarro. Karen prayed that the RTC issue writs of
replevin for the seizure of 2 motor vehicles in Navarro’s
possession.
Navarro leased from plaintiff a certain motor vehicle as
evidenced by a LEASE AGREEMENT WITH OPTION TO
PURCHASE entered into by and between KARGO
ENTERPRISES, then represented by its Manager, GLENN
GO, and ROGER NAVARRO. Navarro issued post dated
checks. All checks bounced.
Navarro alleges that even if the lease agreements were
in the name of Kargo Enterprises, since it did not have
the requisite juridical personality to sue, the actual
parties to the agreement are himself and Glenn Go.
Since it was Karen Go who filed the complaints and not
Glenn Go, she was not a real party-in-interest and the
complaints failed to state a cause of action.
Navarro posits that the RTC erred when it ordered the
amendment of the complaint to include Glenn Go as a
co-plaintiff, instead of dismissing the complaint outright
because a complaint which does not state a cause of
action cannot be converted into one with a cause of
action by a mere amendment or a supplemental
pleading. In effect, RTC created a cause of action for
Karen Go when there was none at the time she filed the
complaints.
Issue: Whether Karen T. Go is the real party in interest,
considering that it was her husband who signed the
lease agreement and the lease contracts were in Kargo
31
Enterprises’ name, a trade name without a juridical
personality.
SC: Yes. The central factor in appreciating the issues
presented in this case is the business name Kargo
Enterprises. The name appears in the title of the
Complaint where the plaintiff was identified as "KAREN
T. GO doing business under the name KARGO
ENTERPRISES," and this identification was repeated in
the first paragraph of the Complaint.Paragraph 2
defined the business KARGO ENTERPRISES undertakes.
Paragraph 3 continued with the allegation that the
defendant "leased from plaintiff a certain motor
vehicle" that was thereafter described. Significantly, the
Complaint specifies and attaches as its integral part the
Lease Agreement that underlies the transaction
between the plaintiff and the defendant. Again, the
name KARGO ENTERPRISES entered the picture as this
Lease Agreement provides: This agreement, made and
entered into by and between: “GLENN GO, of legal age,
married, herein referred to as the LESSOR-SELLER;
representing KARGO ENTERPRISES as its Manager,”
thus, expressly pointing to KARGO ENTERPRISES as the
principal that Glenn represented. In other words, by the
express terms of this Lease Agreement, Glenn did sign
the agreement only as the manager of Kargo Enterprises
and the latter is clearly the real party to the lease
agreements.
As Navarro correctly points out, Kargo Enterprises is a
sole proprietorship, which is neither a natural person,
nor a juridical person, as defined by Article 44 of the
Civil Code: The following are juridical persons: (1) The
State and its political subdivisions; (2) Other
corporations, institutions and entities for public interest
or purpose, created by law; their personality begins as
soon as they have been constituted according to law; (3)
Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
FIRST POINT: pursuant to Section 1, Rule 3 of the Rules,
Kargo Enterprises cannot be a party to a civil action.
Who then is the proper party to file an action based on
a contract in the name of Kargo Enterprises?
Juasing Hardware v. Mendoza: Finally, there is no law
authorizing sole proprietorships like petitioner to bring
 REMEDIAL LAW I (BRONDIAL)
suit in court. The law merely recognizes the existence of
a sole proprietorship as a form of business organization
conducted for profit by a single individual, and requires
the proprietor or owner thereof to secure licenses and
permits, register the business name, and pay taxes to
the national government. It does not vest juridical or
legal personality upon the sole proprietorship nor
empower it to file or defend an action in court. Thus,
the complaint in the court below should have been filed
in the name of the owner of Juasing Hardware. The
allegation in the body of the complaint would show that
the suit is brought by such person as proprietor or
owner of the business conducted under the name and
style Juasing Hardware. The descriptive words "doing
business as Juasing Hardware" may be added to the title
of the case, as is customarily done.
This conclusion should be read in relation with Section
2, Rule 3 of the Rules.
SECOND POINT: As the registered owner of Kargo
Enterprises, Karen is the party who will directly benefit
from or be injured by a judgment in this case. Contrary
to Navarro’s contention, Karen is the real party-in-
interest, and it is legally incorrect to say that her
Complaint does not state a cause of action because her
name did not appear in the Lease Agreement that her
husband signed in behalf of Kargo Enterprises.
THIRD POINT: Glenn and Karen Go are effectively co-
owners of Kargo Enterprises and the properties
registered under this name; hence, both have an equal
right to seek possession of these properties. Applying
Article 484 of the Civil Code, which states that "in
default of contracts, or special provisions, co-ownership
shall be governed by the provisions of this Title," we
find further support in Article 487 of the Civil Code that
allows any of the co-owners to bring an action in
ejectment with respect to the co-owned property.
In sum, in suits to recover properties, all co-owners are
real parties in interest. However, pursuant to Article 487
of the Civil Code and relevant jurisprudence, any one of
them may bring an action, any kind of action, for the
recovery of co-owned properties. Therefore, only one of
the co-owners, namely the co-owner who filed the suit
for the recovery of the co-owned property, is an
indispensable party thereto. The other co-owners are
not indispensable parties. They are not even necessary
32
parties, for a complete relief can be accorded in the suit
even without their participation, since the suit is
presumed to have been filed for the benefit of all co-
owners.
Either of the spouses Go may bring an action against
Navarro to recover possession of the Kargo Enterprises-
leased vehicles which they co-own. This conclusion is
consistent with Article 124 of the Family Code,
supporting as it does the position that either spouse
may act on behalf of the conjugal partnership, so long as
they do not dispose of or encumber the property in
question without the other spouse’s consent.
FOURTH POINT: Glenn Go is not strictly an indispensable
party in the action to recover possession of the leased
vehicles, he only needs to be impleaded as a pro-forma
party to the suit, based on Section 4, Rule 4 of the Rules.
Even assuming that Glenn Go is an indispensable party
to the action, we have held in a number of cases that
the misjoinder or non-joinder of indispensable parties in
a complaint is not a ground for dismissal of action. The
proper remedy when a party is left out is to implead the
indispensable party at any stage of the action. The
court, either motu proprio or upon the motion of a
party, may order the inclusion of the indispensable
party or give the plaintiff opportunity to amend his
complaint in order to include indispensable parties. If
the plaintiff to whom the order to include the
indispensable party is directed refuses to comply with
the order of the court, the complaint may be dismissed
upon motion of the defendant or upon the court's own
motion. Only upon unjustified failure or refusal to obey
the order to include or to amend is the action dismissed.
Rule 3, Section 9. Non-joinder of necessary parties to
be pleaded. — Whenever in any pleading in which a
claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction
over his person may be obtained.
The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of
the claim against such party.
 REMEDIAL LAW I (BRONDIAL)
The non-inclusion of a necessary party does not prevent
the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to
the rights of such necessary party.
Rule 3, Section 10. Unwilling co-plaintiff. — If the
consent of any party who should be joined as plaintiff
can not be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint.
Rule 3, Section 11. Misjoinder and non-joinder of
parties. — Neither misjoinder nor non-joinder of parties
is ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of
any party or on its own initiative at any stage the action
and on such terms as are just. Any claim against a
misjoined party may be severed and proceeded with
separately.
Class suit
Rule 3, Section 12. Class suit. — When the subject
matter of the controversy is one of common or general
interest to many persons so numerous that it is
impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all. Any
party in interest shall have the right to intervene to
protect his individual interest.
Rule 3, Section 3. Representatives as parties. — Where
the action is allowed to be prosecuted and defended by
a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real property in
interest. A representative may be a trustee of an expert
trust, a guardian, an executor or administrator, or a
party authorized by law or these Rules. An agent acting
in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the
principal except when the contract involves things
belonging to the principal.
Examples: guardian, administrator, executor. They are
not the parties in interest. They only filed the case for
the parent/the minor children. The rule provides that
when a representative party files a case, it is mandatory
that the parties in interest must be named.
33
Bar question: How do you distinguish a representative
party from a class suit? This question is wrong because
they have no common line of distinction. You cannot
distinguish a suit from a party. So you have to decipher
what is really being asked here. What is being asked
here is: distinguish a representative party from a party
in a class suit.
What are the requirements in a class suit? The cause of
action is common to many parties and the parties are so
numerous that it is very impractical to bring them all
before the court.
A party in a class suit is one representing a class which
has common issues to be threshed out while a
representative party is not really a party in interest. He
is only representing one who is the real party in interest.
Death or separation of a party
In a suit, where a party dies, whether he is the plaintiff
or the defendant, what does the rule provide during the
pendency of the case? It is the obligation of the lawyer
of the decedent to inform the court about the death
within thirty days. If he does not, that is not a ground
for the dismissal of the case. The adverse party’s
counsel is now obligated to do the job of the counsel for
the decedent.
In the first case, where the counsel for the decedent has
the duty to inform the court, he has to substitute that
without the appointment of an executor or
administrator. But when it is the counsel of the adverse
party who substitutes, it is required that there must be
an executor or administrator appointed.
The appointment of the executor or administrator
cannot be done easily by motion. You have to file a
separate petition for that under settlement of estate
proceeding.
There is a sanction on the part of the lawyer who does
not comply with this obligation.
To compare that with section 17, it includes resignation
and incompetence and it refers to a public officer. The
public officer MAY (not mandatory) substitute or
discontinue the case.
 REMEDIAL LAW I (BRONDIAL)
Rule 3, Section 16. Death of party; duty of counsel. —
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the duty of
his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the
name and address of his legal representative or
representatives. Failure of counsel to comply with his
duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative
or representatives to appear and be substituted within a
period of thirty (30) days from notice.
If no legal representative is named by the counsel for
the deceased party, or if the one so named shall fail to
appear within the specified period, the court may order
the opposing party, within a specified time to procure
the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately
appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs.
Rule 3, Section 17. Death or separation of a party who
is a public officer. — When a public officer is a party in
an action in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the
action may be continued and maintained by or against
his successor if, within thirty (30) days after the
successor takes office or such time as may be granted
by the court, it is satisfactorily shown to the court by
any party that there is a substantial need for continuing
or maintaining it and that the successor adopts or
continues or threatens to adopt or continue to adopt or
continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected,
unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and
accorded an opportunity to be heard.
Transfer of interest
34
Rule 3, Section 19. Transfer of interest. — In case of
any transfer of interest, the action may be continued by
or against the original party, unless the court upon
motion directs the person to whom the interest is
transferred to be substituted in the action or joined with
the original party.
De la Cruz vs Joaquin: Pedro Joaquin filed a Complaint
for the recovery of possession and ownership, the
cancellation of title, and damages, against petitioners in
the RTC. Joaquin alleged that he had obtained a loan
from them on June 29, 1974, payable after 5 years. To
secure the payment of the loan, he executed a Deed of
Sale for a parcel of land in favor of petitioners. The
parties also executed another document entitled
“Kasunduan” which showed the Deed of Sale to be
actually an equitable mortgage. Sps De la Cruz
contended that this document was merely an
accommodation to allow the repurchase of the
property, a right he failed to exercise.
RTC ruled in Joaquin’s favor, declaring that the parties
had entered into a sale with a right of repurchase.
Joaquin had made a valid tender of payment on 2
separate occasions to exercise his right of repurchase.
Accordingly, petitioners were required to reconvey the
property upon his payment.
Sustaining the RTC, CA noted that the parties executed
the Kasunduan to express the terms and conditions of
their actual agreement. CA denied reconsideration and
ordered a substitution by legal representatives, in view
of Joaquin’s death on December 24, 1988. Petitioners
assert that the RTC’s Decision was invalid for lack of
jurisdiction. They claim that Joaquin died during the
pendency of the case. There being no substitution by
the heirs, the RTC allegedly lacked jurisdiction over the
litigation.
Issue: Whether RTC lost jurisdiction over the case upon
the death of Pedro Joaquin.
SC: No. When a party to a pending action dies and the
claim is not extinguished, the Rules of Court require a
substitution of the deceased (Section 16 of Rule 3). The
rule on the substitution of parties was crafted to protect
every party’s right to due process. The estate of the
deceased party will continue to be properly represented
in the suit through the duly appointed legal
 REMEDIAL LAW I (BRONDIAL)
representative. Moreover, no adjudication can be made
against the successor of the deceased if the
fundamental right to a day in court is denied.
The Court has nullified not only trial proceedings
conducted without the appearance of the legal
representatives of the deceased, but also the resulting
judgments. In those instances, the courts acquired no
jurisdiction over the persons of the legal representatives
or the heirs upon whom no judgment was binding.
This general rule notwithstanding, a formal substitution
by heirs is not necessary when they themselves
voluntarily appear, participate in the case, and present
evidence in defense of the deceased. These actions
negate any claim that the right to due process was
violated.
In Chittick v. CA, failure of the heirs to substitute for the
original plaintiff upon her death led to the nullification
of the trial court’s Decision. The latter had sought to
recover support in arrears and her share in the conjugal
partnership. The children who allegedly substituted for
her refused to continue the case against their father and
vehemently objected to their inclusion as parties.
Because he died during the pendency of the case, they
were bound to substitute for the defendant also. The
substitution effectively merged the persons of the
plaintiff and the defendant and thus extinguished the
obligation being sued upon.
The present case is not similar, much less identical, to
the factual milieu of Chittick. The rule on the
substitution by heirs is not a matter of jurisdiction, but a
requirement of due process. When due process is not
violated, as when the right of the representative or heir
is recognized and protected, noncompliance or belated
formal compliance with the Rules cannot affect the
validity of a promulgated decision. Mere failure to
substitute for a deceased plaintiff is not a sufficient
ground to nullify a trial court’s decision. The alleging
party must prove that there was an undeniable violation
of due process.
The records of the present case contain a “Motion for
Substitution of Party Plaintiff” dated February 15, 2002,
filed before the CA. The prayer states as follows:
“WHEREFORE, it is respectfully prayed that the Heirs of
the deceased plaintiff-appellee as represented by his
35
daughter Lourdes dela Cruz be substituted as party-
plaintiff for the said Pedro Joaquin.
“It is further prayed that henceforth the undersigned
counsel for the heirs of Pedro Joaquin be furnished with
copies of notices, orders, resolutions and other
pleadings at its address below.”
Evidently, the heirs of Pedro Joaquin voluntarily
appeared and participated. CA had ordered his legal
representatives to appear and substitute for him. The
substitution even on appeal had been ordered correctly.
In all proceedings, the legal representatives must
appear to protect the interests of the deceased. After
the rendition of judgment, further proceedings may be
held, such as a motion for reconsideration or a new
trial, an appeal, or an execution.
Considering the foregoing circumstances, the Motion for
Substitution may be deemed to have been granted; and
the heirs, to have substituted for the deceased, Pedro
Joaquin. There being no violation of due process, the
issue of substitution cannot be upheld as a ground to
nullify the trial court’s Decision.
Carabeo vs Dingco: The parties entered into a contract
of sale of a parcel of land for P38,000. The respondents
paid P10,000 initial payment upon signing the contract
with the balance to be paid in September 1990.
Respondents handed in parts P9,100 of the balance
despite the petitioner asking them not to do so yet
because the latter had to settle a “squabble” over the
land. After the dispute over the land’s registration was
settled, the respondents offered to pay the balance, but
the petitioner declined acceptance. The respondents
filed a complaint with the katarungan pambarangay. No
settlement was reached so the respondents filed for
specific performance with the RTC. Petitioner stated in
his answer that the sale was void for lack of an object
certain since the kasunduan did not specify the metes
and bounds of the land. The petitioner also alleged that
even if the kasunduan were valid, the respondent’s
failure to comply with their reciprocal obligation to pay
the balance of the purchase price would render the
action premature.
Prior to the decision of the case, the petitioner died.
Records do not show that his counsel informed the RTC
of his death and that the proper substitution was
 REMEDIAL LAW I (BRONDIAL)
effected. RTC ruled in favor of the respondents ordering
the petitioner to sell his rights over the property. CA
affirmed. The motion for reconsideration was denied so
the present petition was filed by the deceased’s son.
Issue: Should the petition of the respondents have been
dismissed on the ground of the death of the original
petitioner?
SC: No. Respecting the argument that the petitioner’s
death rendered the respondents’ complaint against him
dismissible, Bonilla vs. Barcena enlightens: “The
question as to whether an action survives or not
depends on the nature of the action and the damages
sued for. In the causes of action which survive, the
wrong complained of affects primarily and principally
property and property rights, the injuries to the person
being merely incidental, while in the causes of action
which do not survive, the injury complained of is to the
person, the property and rights of property affected
being incidental.”
Respondents are pursuing a property right arising from
the kasunduan, whereas petitioner is invoking nullity of
the kasunduan to protect his propriety interest.
Assuming arguendo, however, that the kasunduan is
deemed void, there is a corollary obligation of the
petitioner to return the money paid by respondents,
and since the action involves property rights, it survives.
Trial on the merits was already concluded before
petitioner died. Since RTC was not informed of the
petitioner’s death, it may not be faulted for proceeding
to render judgment without ordering his substitution.
Its judgment is thus valid and binding upon petitioner’s
legal representative or successors-in-interest, insofar as
his interest in the property subject of the action is
concerned.
In another vein, the death of a client immediately
divests the counsel of authority. Thus, in filing a Notice
of Appeal, petitioner’s counsel of record had no
personality to act on behalf of the already deceased
client who, it bears reiteration, had not been
substituted as a party after his death. The trial court’s
decision had thereby become final and executor, no
appeal having been perfected.
Contractual Money claims
36
Rule 3, Section 20. Action and contractual money
claims. — When the action is for recovery of money
arising from contract, express or implied, and the
defendant dies before entry of final judgment in the
court in which the action was pending at the time of
such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in
these Rules for prosecuting claims against the estate of
a deceased person.
When the defendant dies, pendente lite, the case shall
not be dismissed but shall move on up to entry of
judgment. This is a U-turn from the 1960 Rules of Court
where the case must be dismissed. The reason is to
expedite the proceeding.
A final judgment is different from an entered judgment.
Even if there is an appeal, the appeal continues. Even if
there is a petition for review after the appeal, the
petition continues. It must conclude up to entry of
judgment.
After entry of judgment, what is the next move of the
judgment obligee? Ordinarily, you avail of Rule 39
(Execution of Judgment). Here, do you avail of Rule 39?
No. there is a cross-reference to Rule 86, which provides
the 4 matters claimable under the estate:
1. All claims for money against the decent, arising
from contract, express or implied, whether the
same be due, not due, or contingent;
2. All claims for funeral expenses;
3. Expense for the last sickness of the decedent, and
4. Judgment for money against the decent.
Rule 87 is an action for or against executors or
administrators. All other actions except those which are
claimable against the estate may be brought for or
against the executor or administrator.
Section 20 must always be correlated with Rule 86 and
87 to see a bird’s eye view of the entire provisions.
So if you file it as a claim against the estate, how do you
go about it?
 REMEDIAL LAW I (BRONDIAL)
A vs B, this is a contractual money claim. B borrowed
P1,000,000 from A. This is a contract of loan. B did not
pay so A filed a case for sum of money based on
contract (contractual money claim). B died. The case
must continue up to entry of judgment. When there is
already an entry of judgment, what should A do? He
cannot avail of Rule 39/ he cannot go to court and file a
motion for execution because the defendant here
already died.
He must file it as a claim against the estate. How? You
cannot claim against the heirs of the decedent. It must
be claimed against the estate. The heirs are different
from the estate. If the heirs would be representing the
estate, that would be another matter.
How will the judgment obligee, A, file a claim against
the estate of B? There is a procedure under Rule 86.
If there is already a pending settlement of the estate, it
would be easier. If there is no pending settlement of the
estate of the decedent, A should file a settlement of
estate proceeding. Is A authorized to do that? Yes. Who
may file a settlement of the estate? A creditor may do
so.
But if there is already a pending settlement of the
estate, A should just submit a copy of the judgment
together with the entry of judgment. Under settlement
of estate proceedings, you apply for preference of
credits.
A is riding his car along Roxas Boulevard and he collided
with another car driven by B, and nobody would like to
accept obligation or liability. A filed a case for sum of
money against B. B, pendente lite, dies. Can you apply
Section 20? No, Section 20 deals with contractual
money claims. There is no contract in this case.
If B is a taxi driver and A is his passenger, this becomes a
contractual money claim (based on the contract of
transportation) if A files a suit.
D. Venue of actions: real and personal actions
The venue of an action is what the law or rule provides
(Example: Give a law providing for the venue of an
action: Rule 66 or petition for quo warranto, where the
venue is the residence of the respondent. In a special
37
proceeding for guardianship, the venue is the residence
of the ward. In adoption, the venue is the residence of
the prospective adopter. In these cases, you cannot
agree otherwise).
In the absence of any rule, the agreement of the parties
will govern. See Pacific Consultants Philippines, Inc.
(PPI) vs Schonfeld
In the absence of any agreement, you distinguish
whether the action is real or personal. If it is a personal
action, the venue is the residence of the plaintiff, or any
of the plaintiffs, or the residence of the defendant, or
any of the defendants, at the option of the plaintiff. If it
is a real action, the venue is where the property is
located.
Rule 4, Section 1. Venue of real actions. — Actions
affecting title to or possession of real property, or
interest therein, shall be commenced and tried in the
proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof,
is situated.
Forcible entry and detainer actions shall be commenced
and tried in the municipal trial court of the municipality
or city wherein the real property involved, or a portion
thereof, is situated.
Rule 4, Section 2. Venue of personal actions. — All
other actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal defendants
resides, or in the case of a non-resident defendant
where he may be found, at the election of the plaintiff.
Rule 4, Section 3. Venue of actions against
nonresidents. — If any of the defendants does not
reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff, or any
property of said defendant located in the Philippines,
the action may be commenced and tried in the court of
the place where the plaintiff resides, or where the
property or any portion thereof is situated or found.
Rule 4, Section 4. When Rule not applicable. — This
Rule shall not apply.
 REMEDIAL LAW I (BRONDIAL)
(a) In those cases where a specific rule or law provides
otherwise; or
(b) Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof.
Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld:
Venue stipulation is just for the convenience of the
parties. It is not restrictive unless it includes an
exclusivity clause. The word ‘shall’ does not denote that
the stipulation is exclusive. A stronger word than shall
must be used. Words that may be used: “exclusive”, “in
no other place”.
Schonfeld was a non-resident Canadian citizen. He was
employed by Pacific Consultants International of Japan
(PCIJ) as Sector Manager of PPI in the Philippines. His
salary was paid partly by PPI and PCIJ. Henrichsen,
president of PPI and director of PCIJ, transmitted a
letter of employment to Schonfeld requesting him to
accept and affix his conformity. The letter provides: in
case of any question of interpretation of the conditions
of employment, as well as any question arising between
the employee and the company which is in consequence
of or connected with his employment, which cannot be
settled amicably, should be finally settled by the Court
of Arbitration in London through written submissions.
Schonfeld arrived in the Philippines and was given the
status of a resident alien. Later, Henrichsen informed
Schonfeld that his employment had been terminated
effective August 4, 1999. He was, however, informed via
email to stay put in his job until even after August 5
until such time that he would be able to report on
certain projects and discuss all the opportunities he had
developed. He continued his work until October 1, 1999.
Schonfeld filed several money claims with PPI, and also
filed a complaint for illegal dismissal with the Labor
Arbiter. PCIJ and PPI filed a Motion to Dismiss on the
ground of improper venue: He was a Canadian citizen,
employed and dismissed by PCIJ whose principal office
is in Japan, and the letter of employment was executed
in Japan. Under lex loci contractus, the complaint should
have been filed in Tokyo. Also, the parties agreed that
any employment-related dispute should be brought
before the London Court of Arbitration.
38
LA found that the contract of employment was
controlling; the case should be submitted to the
jurisdiction of the court of arbitration in London. The
NLRC likewise agreed with the LA. The CA ruled in favor
of PPI and PCIJ. Even under the contract of employment,
the parties were not precluded from bringing a case
related thereto in other venues. While there was an
agreement, the venue is not exclusive since there was
no stipulation to that effect.
SC: The case may be filed and tried in Philippine courts.
The settled rule on stipulations regarding venue is that
while they are valid and enforceable, venue stipulations
in a contract do not, as a rule, supersede the general
rule set forth in Rule 4 of the ROC in the absence of
qualifying or restrictive words. Any agreement of venue,
without such restrictive words should be considered
merely as an agreement or additional forum, not as a
limiting venue to the specified place. They are not
exclusive but, rather permissive. If the intention of the
parties were to restrict venue, there must be
accompanying language clearly and categorically
expressing their purpose and design that actions
between them be litigated only at the place named by
them.
E. Summary Procedure
Rule 5, Section 1. Uniform procedure. — The procedure
in the Municipal Trial Courts shall be the same as in the
Regional Trial Courts, except (a) where a particular
provision expressly or impliedly applies only to either of
said courts, or (b) in civil cases governed by the Rule on
Summary Procedure.
Uniformity rule – the Rules of Court applies in all courts.
Correlate this with Rule 1, regarding the non-application
of the Rules to naturalization cases, land registration
cases, cadastral cases, election cases, insolvency
proceedings.
Section 4. In what case not applicable. — These Rules
shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings,
and other cases not herein provided for, except by
analogy or in a suppletory character and whenever
practicable and convenient.
 REMEDIAL LAW I (BRONDIAL)
In Ong Chia vs Republic, Ong Chia was the foreigner
who applied to be a naturalized Filipino citizen. It was
granted by the trial court. The government, through the
OSG, appealed the case. In the appellate court, the
Republic offered certain pieces of documentary
evidence which were not offered in the trial court. Ong
Chia questioned that, claiming the evidence should not
be admitted since they were never offered. SC: In
naturalization cases, applying Rule 1, the Rules of Court
are not applicable but only in suppletory character.
Under Rule 5 as well, you have to take note of Summary
Procedure.
III. RULES 6 TO 9: PLEADINGS AND DEFAULTS
A – Plaintiff
B – Defendant
A files a complaint against B. B files an answer. A files a
reply.
These are the major pleadings: complaint, answer and
reply.
C – Co-defendant
B files a cross-claim against C. C can also file a cross-
claim against B. B or C may interplead D.
D – third-party defendant
In relation to D, C would be a third-party plaintiff.
If D impleads Y, D would be a fourth-party plaintiff and Y
would be a fourth-party defendant.
C can also file a complaint (a third party complaint). D
can file a fourth party complaint.
D can answer the third-party complaint through an
answer to a third party complaint. When D answers,
that is also an answer to the original complaint because
there could be no third-party complaint without the
original complaint.
39
The claim of B against A is a separate and distinct
pleading called the counterclaim. The counterclaim is
not the answer; it is the complaint of the defendant
against the plaintiff. A’s answer to the counterclaim is
not the reply. The reply is the response to the answer
but the answer to the counterclaim is an answer to the
counterclaim of the defendant as against the plaintiff.
E – intervenor
E is an outsider; an intervenor under Rule 19. He is
never impleaded by any of the parties. He impleads
himself. Rule 19 provides that he must have interest in
the subject matter (if the case is for recovery of
property, he must have an interest in the property, ex:
he may be the owner/mortgagor/mortgagee/possessor
of the property).
You must never confuse an intervention with an
interpleader. The basic distinction is that while an
intervenor, E, has interest in the subject matter, an
interpleader has no interest in the subject matter.
A. Kinds of Pleadings
Rule 6, Section 1. Pleadings defined. — Pleadings are
the written statements of the respective claims and
defenses of the parties submitted to the court for
appropriate judgment.
Rule 6, Section 2. Pleadings allowed. — The claims of a
party are asserted in a complaint, counterclaim, cross-
claim, third (fourth, etc.)-party complaint, or complaint-
in-intervention.
Third-party defendant is someone different from the
original parties, for purposes of contribution,
indemnification or subrogation. The answer must
already include allegations against the original
complaint.
Complaint and Answer
Rule 6, Section 3. Complaint. — The complaint is the
pleading alleging the plaintiff's cause or causes of
action. The names and residences of the plaintiff and
defendant must be stated in the complaint.
 REMEDIAL LAW I (BRONDIAL)
Rule 6, Section 4. Answer. — An answer is a pleading in
which a defending party sets forth his defenses.
The complaint constitutes the allegations or the claim of
the plaintiff against the defendant. The defendant’s
answer is the response to the claim of the plaintiff. The
answer constitutes defenses.
Defenses: Negative and Affirmative
Rule 6, Section 5. Defenses. — Defenses may either be
negative or affirmative.
(a) A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
(b) An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of confession
and avoidance.
2 modes of negative defense:
(1) specific denial – give the reason for your denial
(2) lack of knowledge sufficient to form belief as to the
truth of the claim
Affirmative defense – admission of the allegation but
you put up a new subject matter so as to avoid the
claim. Ex: defendant borrowed P100,000 from the
plaintiff. If you invoke an affirmative defense, you’ll say
that you have paid the P100,000 that you borrowed
from the plaintiff. In effect, you are admitting that you
borrowed money but you put up a new matter, which is
payment, to avoid the claim.
There are several kinds of affirmative defenses: fraud,
statute of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery, discharge
in bankruptcy, and any other matter by way of
confession and avoidance. This list is not exclusive.
40
In the rules of evidence, when you put up an affirmative
defense, whether in civil or criminal cases, you have
what you call reverse trial.
Reverse trial is a process whereby the defendant puts
up an affirmative defense and therefore, there is an
admission already on his part of the allegations in the
pleading. That is why you reverse the trial.
In criminal cases, there are no pleadings, except the
information. The information is read, under Rule 116,
before the start of the trial (during arraignment) and
then the accused puts up an affirmative defense (ex.
self-defense in a murder case). It amounts to saying that
he admits the allegations. When this happens, there is
reverse trial. There is no need to prove that the accused
killed the victim because he already admitted it. There is
no need to show evidence-in-chief. The trial starts with
the accused and he puts up the defense of self-defense.
If it is necessary, the prosecution puts up rebuttal
evidence.
Negative pregnant – a term in contradiction. When you
invoke negative pregnant, in effect, you are admitting
what you seek to deny. That’s why you can never use
negative pregnant if the allegation is a simple
declarative sentence.
Example: Defendant borrowed money from the plaintiff
in the amount of P100,000. This is a simple declarative
sentence so you cannot invoke here negative pregnant.
But if you qualify that in such manner that it becomes a
compound, complex declaration, then negative
pregnant might come out:
Defendant borrowed money from the plaintiff in the
amount of P100,000 when the plaintiff was playing
basketball.
I deny that I borrowed money from the plaintiff in the
amount of P100,000 when the plaintiff was playing
basketball. This is a negative pregnant because it proves
that he did borrow money, but not at the time the
plaintiff he was playing basketball.
Republic vs Sandiganbayan: This case involved a
negative pregnant. It was alleged that Imelda had 15
 REMEDIAL LAW I (BRONDIAL)
Swiss accounts. Imelda said no, she only had 7 Swiss
accounts. So she admitted she had Swiss account.
Republic, through the PCGG filed a petition for
forfeiture before the Sandiganbayan against Ferdinand
Marcos, represented by his Estate/Heirs and Imelda
Marcos. Republic sought the declaration of the
aggregate amount of US$356 million deposited in
escrow in the PNB, as ill-gotten wealth. The funds were
previously held in 5 account groups, using various
foreign foundations in certain Swiss banks. Petitioner
filed a complaint and respondent an answer.
Petitioner, in the main, asserts that nowhere in the
respondents' motions for reconsideration and
supplemental motion for reconsideration were the
authenticity, accuracy and admissibility of the Swiss
decisions ever challenged.
SC: This particular denial had the earmark of what is
called in the law on pleadings as a negative pregnant,
that is, a denial pregnant with the admission of the
substantial facts in the pleading responded to which are
not squarely denied. It was in effect an admission of the
averments it was directed at. Stated otherwise, a
negative pregnant is a form of negative expression
which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party.
It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is
alleged with qualifying or modifying language and the
words of the allegation as so qualified or modified are
literally denied, has been held that the qualifying
circumstances alone are denied while the fact itself is
admitted.
The material allegations in paragraph 23 of the said
petition were not specifically denied by respondents in
paragraph 22 of their answer. The denial contained in
paragraph 22 of the answer was focused on the
averment in paragraph 23 of the petition for forfeiture
that "Respondents clandestinely stashed the country's
wealth in Switzerland and hid the same under layers and
layers of foundations and corporate entities." Paragraph
22 of the respondents' answer was thus a denial
pregnant with admissions of the following substantial
facts:
41
Therefore, the allegations in the petition for forfeiture
on the existence of the Swiss bank deposits in the sum
of about US$356 million, not having been specifically
denied by respondents in their answer, were deemed
admitted by them pursuant to Section 11, Rule 8 of the
1997 Revised Rules on Civil Procedure
The matters referred to in paragraphs 23 to 26 of the
respondents' answer pertained to the creation of five
groups of accounts as well as their respective ending
balances and attached documents alleged in paragraphs
24 to 52 of the Republic's petition for forfeiture.
Respondent Imelda R. Marcos never specifically denied
the existence of the Swiss funds. Her claim that "the
funds involved were lawfully acquired" was an
acknowledgment on her part of the existence of said
deposits. This only reinforced her earlier admission of
the allegation in paragraph 23 of the petition for
forfeiture regarding the existence of the US$356 million
Swiss bank deposits.
Caneland Sugar Corp. vs Alon: Petitioner does not
dispute its loan obligation with respondent. Petitioner’s
bone of contention before the RTC is that the
promissory notes are silent as to whether they were
covered by the Mortgage Trust Indenture and Mortgage
Participation on its property. It does not categorically
deny that these promissory notes are covered by the
security documents. These vague assertions are, in fact,
negative pregnants, i.e., denials pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied.
A negative pregnant is a "form of negative expression
which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party.
It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is
alleged with qualifying or modifying language and the
words of the allegation as so qualified or modified are
literally denied, has been held that the qualifying
circumstances alone are denied while the fact itself is
admitted."
Petitioner’s allegations do not make out any justifiable
basis for the granting of any injunctive relief. Even when
the mortgagors were disputing the amount being
sought from them, upon the non-payment of the loan,
which was secured by the mortgage, the mortgaged
 REMEDIAL LAW I (BRONDIAL)
property is properly subject to a foreclosure sale. This is
in consonance with the doctrine that to authorize a
temporary injunction, the plaintiff must show, at least
prima facie, a right to the final relief.
Counterclaims: Compulsory and Permissive
Rule 6, Section 6. Counterclaim. — A counterclaim is
any claim which a defending party may have against an
opposing party.
Rule 6, Section 7. Compulsory counterclaim. — A
compulsory counterclaim is one which, being cognizable
by the regular courts of justice, arises out of or is
connected with the transaction or occurrence
constituting the subject matter of the opposing party's
claim and does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction. Such a counterclaim must be within
the jurisdiction of the court both as to the amount and
the nature thereof, except that in an original action
before the Regional Trial Court, the counter-claim may
be considered compulsory regardless of the amount.
Counterclaim – it is neither an answer nor a reply. It is
the complaint of the defendant against the plaintiff. It is
a totally separate pleading.
2 kinds of counterclaim:
(1) compulsory – is that which arises from the same
transaction or series of transactions
(2) permissive – does not arise from the same
transaction
Alday vs FGU Insurance: What are the indicia of a
compulsory counterclaim? Alday was an insurance
agent. She was sued by FGU for non-remittance of
premiums. Alday set-up a counterclaim saying FGU
didn’t pay her bonuses, commissions. And because of
the complaint, she suffered sleepless nights, wounded
feelings, etc. FGU said since the counterclaim is
permissive and Alday did not pay the docket fees, the
trial court did not acquire jurisdiction over the
counterclaim.
SC held that the counterclaim of Alday is of 2 kinds.
Some counterclaims are compulsory, and those do not
require docket fees. Some are permissive. Because they
did not arise from the complaint, therefore, it is a
42
permissive counterclaim. Alday only had to pay for the
permissive counterclaim.
This doctrine of Alday was overruled in January 2008 by
Korea Technologies Incorporated, where the SC said as
of August 13, 2004, all kinds of counterclaim must be
paid irrespective of whether they are compulsory or
permissive. There was a howl of protest. By October of
the same year, SC reversed their own doctrine and went
back to Alday vs FGU through Mercado vs CA.
Alday vs FGU Insurance: FGU filed a complaint with the
RTC alleging that Alday owed it unliquidated cash
advances, unremitted costs of premiums and other
charges she incurred in the course of her work as an
insurance agent. FGU also prayed for exemplary
damages, attorney’s fees, and costs of suit.
Alday filed her answer and a counterclaim where she
asserted her right for the payment of direct
commissions, profit commissions, contingent bonuses
and accumulated premium reserves. She also prayed for
attorney’s fees, litigation expenses, moral damages and
exemplary damages for the allegedly unfounded action
filed by GFU.
FGU filed a motion to strike out answer with compulsory
counterclaim and to declare defendant in default
because her answer was allegedly filed out of time. The
RTC denied FGU’s motion and its MR. FGU then filed a
motion to dismiss Alday’s counterclaim. It contended
that RTC never acquired jurisdiction over the same
because of the non-payment of docket fees. Alday asked
the RTC to declare her counterclaim as exempt from
payment of docket fees since it is compulsory and that
respondent be declared in default for having failed to
answer the counterclaim. RTC granted FGU’s motion to
dismiss the counterclaim and consequently, denied
Alday’s motion. The RTC found that the counterclaim is
permissive in nature and held that Alday’s failure to pay
docket fees prevented the court from acquiring
jurisdiction over it. The RTC likewise denied her MR. CA
sustained the RTC’s order and denied Alday’s MR.
SC: A compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out of
or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s
claim and does not require for its adjudication the
 REMEDIAL LAW I (BRONDIAL)
presence of third parties of whom the court cannot
acquire jurisdiction.
Petitioner’s counterclaim for commissions, bonuses, and
accumulated premium reserves is merely permissive.
The evidence required to prove petitioner’s claims
differs from that needed to establish respondent’s
demands for the recovery of cash accountabilities from
petitioner, such as cash advances and costs of
premiums. The recovery of respondent’s claims is not
contingent or dependent upon establishing petitioner’s
counterclaim, such that conducting separate trials will
not result in the substantial duplication of the time and
effort of the court and the parties. One would search
the records in vain for a logical connection between the
parties’ claims. This conclusion is further reinforced by
petitioner’s own admissions since she declared in her
answer that respondent’s cause of action, unlike her
own, was not based upon the Special Agent’s Contract.
However, petitioner’s claims for damages, allegedly
suffered as a result of the filing by respondent of its
complaint, are compulsory.
There is no need for petitioner to pay docket fees for
her compulsory counterclaim. On the other hand, in
order for the RTC to acquire jurisdiction over her
permissive counterclaim, petitioner is bound to pay the
prescribed docket fees. The rule on the payment of
filing fees has been laid down by the Court in the case of
Sun Insurance Office, Ltd. v. Hon. Maximiano Asuncion:
1. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with
jurisdiction over the subject-matter or nature of the
action. Where the filing of the initiatory pleading is not
accompanied by payment of the docket fee, the court
may allow payment of the fee within a reasonable time
but in no case beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive counterclaims,
third-party claims and similar pleadings, which shall not
be considered filed until and unless the filing fee
prescribed therefor is paid. The court may allow
payment of said fee within a reasonable time but also in
no case beyond its applicable prescriptive or
reglementary period.
43
3. Where the trial court acquires jurisdiction over a
claim by the filing of the appropriate pleading and
payment of the prescribed filing fee but, subsequently,
the judgment awards a claim not specified in the
pleading, or if specified the same has been left for
determination by the court, the additional filing fee
therefor shall constitute a lien on the judgment. It shall
be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and
collect the additional fee.
Although the payment of the prescribed docket fees is a
jurisdictional requirement, its non-payment does not
result in the automatic dismissal of the case provided
the docket fees are paid within the applicable
prescriptive or reglementary period.
Was FGU in default for failing to answer petitioner’s
counterclaim? No. Insofar as the permissive
counterclaim of petitioner is concerned, there is
obviously no need to file an answer until petitioner has
paid the prescribed docket fees for only then shall the
court acquire jurisdiction over such claim. Meanwhile,
the compulsory counterclaim of petitioner for damages
based on the filing by respondent of an allegedly
unfounded and malicious suit need not be answered
since it is inseparable from the claims of respondent. If
respondent were to answer the compulsory
counterclaim of petitioner, it would merely result in the
former pleading the same facts raised in its complaint.
Criteria or tests that may be used in determining
whether a counterclaim is compulsory or permissive,
summarized as follows:
1. Are the issues of fact and law raised by the claim and
counterclaim largely the same?
2. Would res judicata bar a subsequent suit on
defendant’s claim absent the compulsory counterclaim
rule?
3. Will substantially the same evidence support or refute
plaintiff’s claim as well as defendant’s counterclaim?
(Evidence test rule)
4. Is there any logical relation between the claim and
the counterclaim? (Logical relationship rule)
 REMEDIAL LAW I (BRONDIAL)
Korea Technologies Co., Ltd. (KOGIES) vs Lerma: The
rules on the payment of docket fees for counterclaims
and cross claims were amended effective August 16,
2004.
KOGIES strongly argues that when PGSMC filed the
counterclaims, it should have paid docket fees and filed
a certificate of non-forum shopping, and that its failure
to do so was a fatal defect.
We disagree with KOGIES. The counterclaims of PGSMC
were incorporated in its Answer with Compulsory
Counterclaim in accordance with Section 8 of Rule 11,
the rule that was effective at the time the Answer with
Counterclaim was filed. Sec. 8 on existing counterclaim
or cross-claim states, “A compulsory counterclaim or a
cross-claim that a defending party has at the time he
files his answer shall be contained therein.”
At the time PGSMC filed its Answer incorporating its
counterclaims against KOGIES, it was not liable to pay
filing fees for said counterclaims being compulsory in
nature. However, effective August 16, 2004 under Sec.
7, Rule 141, as amended by A.M. No. 04-2-04-SC, docket
fees are now required to be paid in compulsory
counterclaim or cross-claims.
Mercado vs CA: Leonides Mercado had been
distributing respondent San Miguel Corporation’s
(SMC’s) beer products since 1967. In 1991, SMC
extended to him a P7.5 million credit line allowing him
to withdraw goods on credit. To secure his purchases,
Mercado assigned 3 China Banking Corporation (CBC)
certificates of deposit amounting to P5 million to SMC
and executed a continuing hold-out agreement stating:
“Any demand made by *SMC+ on *CBC+, claiming default
on my/our part shall be conclusive on [CBC] and shall
serve as absolute authority for [CBC] to encash the [CBC
certificates of deposit] xxx, whether or not I/we have in
fact defaulted on any of my/our obligations with [SMC],
it being understood that the issue of whether or not
there was factual default must be threshed out solely
between me/us and [SMC+.” He also submitted 3 surety
bonds from Eastern Assurance and Surety Corporation
(EASCO) for P2.6 million.
SMC notified CBC that Mercado failed to pay for the
items he withdrew on credit. Citing the continuing hold-
out agreement, it asked CBC to release the proceeds of
44
the assigned certificates of deposit. CBC approved
SMB’s request and informed Mercado. Mercado filed an
action to annul the continuing hold-out agreement and
deed of assignment in the RTC. He claimed that the
continuing hold-out agreement allowed forfeiture
without the benefit of foreclosure. It was therefore void
pursuant to Article 2088 of the Civil Code. Moreover,
Mercado argued that he had already settled his recent
purchases on credit but SMC erroneously applied the
said payments to his old accounts not covered by the
continuing hold-out agreement (i.e., purchases made
prior to the extension of the credit line).
SMC filed its answer with counterclaim against
Mercado. It contended that Mercado delivered only 2
CBC certificates of deposit amounting to P4.5 million
and asserted that the execution of the continuing hold-
out agreement and deed of assignment was a
recognized business practice. Furthermore, because
Mercado admitted his outstanding liabilities, SMC
sought payment of the lees products he withdrew (or
purchased on credit) worth P7,468,153.75. SMC filed a
third-party complaint against EASCO. It sought to collect
the proceeds of the surety bonds submitted by
Mercado.
Mercado filed an urgent manifestation and motion
seeking the dismissal of the complaint. He claimed that
he was no longer interested in annulling the continuing
hold-out agreement and deed of assignment. RTC
denied the motion. Instead, it set the case for pre-trial.
Thereafter, trial ensued. RTC dismissed the complaint
and ordered Mercado and EASCO (to the extent of P2.6
million or the value of its bonds) to jointly and severally
pay SMC P7,468,153.75.
Mercado and EASCO appealed to the CA, insisting that
Mercado did not default in the payment of his
obligations to SMC. CA affirmed the RTC decision in
toto. Mercado and EASCO both moved for
reconsideration but their respective motions were
denied. EASCO filed a petition for review on certiorari in
this Court but eventually agreed to settle its liability
with SMC. The petition was terminated. Meanwhile,
Mercado passed away and was substituted by his heirs,
petitioners Racquel, Jimmy, Henry, Louricar and Virgilio
Mercado. Petitioners subsequently filed this petition
asserting that the CA erred in affirming the RTC decision
in toto. The said decision (insofar as it ordered Mercado
 REMEDIAL LAW I (BRONDIAL)
to pay SMC P7,468,153.75) was void. SMC’s
counterclaim was permissive in nature. Inasmuch as
SMC did not pay docket fees, the RTC never acquired
jurisdiction over the counterclaim.
SC: RTC acquired jurisdiction although SMC did not pay
docket fees. A counterclaim (or a claim which a
defending party may have against any party) may be
compulsory or permissive. A counterclaim that (1) arises
out of (or is necessarily connected with) the transaction
or occurrence that is the subject matter of the opposing
party’s claim; (2) falls within the jurisdiction of the court
and (3) does not require for its adjudication the
presence of third parties over whom the court cannot
acquire jurisdiction, is compulsory. Otherwise, a
counterclaim is merely permissive.
When Mercado sought to annul the continuing hold-out
agreement and deed of assignment, he in effect sought
to be freed from them. While he admitted having
outstanding obligations, he nevertheless asserted that
those were not covered by the assailed accessory
contracts. For its part, aside from invoking the validity of
the said agreements, SMC therefore sought to collect
the payment for the value of goods Mercado purchased
on credit. Thus, Mercado’s complaint and SMC’s
counterclaim both touched the issues of whether the
continuing hold-out agreement and deed of assignment
were valid and whether Mercado had outstanding
liabilities to SMC. The same evidence would essentially
support or refute Mercado’s claim and SMC’s
counterclaim.
Based on the foregoing, had these issues been tried
separately, the efforts of the RTC and the parties would
have had to be duplicated. SMC’s counterclaim, being
logically related to Mercado’s claim, was compulsory in
nature. Consequently, the payment of docket fees was
not necessary for the RTC to acquire jurisdiction over
the subject matter.
Rule 6, Section 8. Cross-claim. — A cross-claim is any
claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the
cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
45
Cross-claim – between the defendants. This is the
complaint of the co-defendant against his co-defendant
for purposes of contribution, subrogation or
indemnification.
B borrowed money from A in the amount of P500,000. A
knows the P500,000 will be used by B and C. B did not
pay. A can file a case impleading alternative defendants.
B, in the same case, can file a cross-claim against his co-
defendant asking for contribution.
Rule 6, Section 9. Counter-counterclaims and counter-
crossclaims. — A counter-claim may be asserted against
an original counter-claimant.
A cross-claim may also be filed against an original cross-
claimant.
Reply
Rule 6, Section 10. Reply. — A reply is a pleading, the
office or function of which is to deny, or allege facts in
denial or avoidance of new matters alleged by way of
defense in the answer and thereby join or make issue as
to such new matters. If a party does not file such reply,
all the new matters alleged in the answer are deemed
controverted.
If the plaintiff wishes to interpose any claims arising out
of the new matters so alleged, such claims shall be set
forth in an amended or supplemental complaint.
Reply – response to an answer.
General rule: The reply is not necessary because if you
do not put up a reply, it means you controvert the
allegations in the answer.
Exceptions: (1) when the answer sets up a new matter,
there is a necessity of a reply. (2) When the defendant
avails of an actionable document, you have to file a
reply. Otherwise, the authenticity and due execution of
the document are deemed admitted.
Rule 8, Section 7. Action or defense based on
document. — Whenever an action or defense is based
upon a written instrument or document, the substance
of such instrument or document shall be set forth in the
 REMEDIAL LAW I (BRONDIAL)
pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may
with like effect be set forth in the pleading.
Rule 8, Section 8. How to contest such documents. —
When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding
pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party, under
oath specifically denies them, and sets forth what he
claims to be the facts, but the requirement of an oath
does not apply when the adverse party does not appear
to be a party to the instrument or when compliance
with an order for an inspection of the original
instrument is refused.
B. Parts of a Pleading
Rule 7, Section 1. Caption. — The caption sets forth the
name of the court, the title of the action, and the docket
number if assigned.
The title of the action indicates the names of the
parties. They shall all be named in the original complaint
or petition; but in subsequent pleadings, it shall be
sufficient if the name of the first party on each side be
stated with an appropriate indication when there are
other parties.
Their respective participation in the case shall be
indicated.
Rule 7, Section 2. The body. — The body of the pleading
sets fourth its designation, the allegations of the party's
claims or defenses, the relief prayed for, and the date of
the pleading.
(a) Paragraphs. — The allegations in the body of a
pleading shall be divided into paragraphs so numbered
to be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that
can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings.
(b) Headings. — When two or more causes of action are
joined the statement of the first shall be prefaced by the
46
words "first cause of action,'' of the second by "second
cause of action", and so on for the others.
When one or more paragraphs in the answer are
addressed to one of several causes of action in the
complaint, they shall be prefaced by the words "answer
to the first cause of action" or "answer to the second
cause of action" and so on; and when one or more
paragraphs of the answer are addressed to several
causes of action, they shall be prefaced by words to that
effect.
(c) Relief. — The pleading shall specify the relief sought,
but it may add a general prayer for such further or other
relief as may be deemed just or equitable.
(d) Date. — Every pleading shall be dated.
Rule 7, Section 3. Signature and address. — Every
pleading must be signed by the party or counsel
representing him, stating in either case his address
which should not be a post office box.
The signature of counsel constitutes a certificate by him
that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground
to support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended
for delay. Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of this Rule, or
alleges scandalous or indecent matter therein, or fails
promptly report to the court a change of his address,
shall be subject to appropriate disciplinary action.
The address must not be a post-office box address.
Otherwise, the prescriptive period will not lie because it
will depend upon when you get your mails in your post-
office box.
Based on certain circulars of the SC, in every pleading,
what is necessary is not only the signature and the
address. There are 4 more items necessary: (1) Roll
Number, (2) IBP Number, (3) PTR Number, (4) MCLE
Exemption Number.
 REMEDIAL LAW I (BRONDIAL)
Verification and Certification
Rule 7, Section 4. Verification. — Except when
otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by
affidavit.
A pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are
true and correct of his knowledge and belief.
A pleading required to be verified which contains a
verification based on "information and belief", or upon
"knowledge, information and belief", or lacks a proper
verification, shall be treated as an unsigned pleading.
Rule 7, Section 5. Certification against forum shopping.
— The plaintiff or principal party shall certify under oath
in the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he
has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge,
no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report that
fact within five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading has been
filed.
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing. The
submission of a false certification or non-compliance
with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for
administrative sanctions.
47
While verification is not mandatory, certification against
forum shopping is mandatory because there are only
pleadings that require verification but all pleadings
require certification against forum shopping. While lack
of verification is easily remediable by amendment,
certification against forum shopping cannot be
remedied so it leads to dismissal of the case.
Who may verify? It should only be the party. Counsel
cannot verify. Neither can the counsel sign the
certification against forum shopping. The exception is
when the party is a juridical entity and the counsel is an
in-house counsel on the basis of the doctrine laid down
in Iglesia ni Cristo vs Ponferrada.
Suppose there are multiple parties, the rule provides all
the parties must verify. So if there are 5 plaintiffs, all the
5 plaintiffs must verify. If only one verifies, that is
erroneous but correctible. The exception is in cases of
co-ownership and they are the plaintiffs, but not when
they are defendants. So that co-owners, in effect, are
indispensable parties defendants. In the case of
plaintiffs, they are not indispensable since only one is an
indispensable party co-owner.
De Castro vs CA: The defendants are indispensable
parties defendants. SC held that the action was based
on the principle of agency. The principals were only 2 of
the 5 sisters who appointed someone as their agent in
selling the properties. The indispensability of the co-
owners here is not needed because it is based on the
principle of agency.
When an indispensible party is not impleaded, the
judgment is null and void not only as to those who
were not impleaded but even as to those who
participated in the case.
Francisco Artigo sued Constante and Corazon De Castro
to collect the unpaid balance of his broker’s commission
from them. The De Castros were co-owners of 4 lots
located in QC. They authorized Artigo to act as real
estate broker in the sale of the properties. Artigo found
Times Transit Corp. as a prospective buyer which
desired to buy 2 lots only. The same was consummated
and Artigo received commission from the De Castros.
Artigo felt that his commission should be 5% of the
agreed price. He sued to collect the balance after having
received an advance.
 REMEDIAL LAW I (BRONDIAL)
The De Castros argue that the complaint should have
been dismissed for failure to implead all the co-owners
of the 2 lots. They claim that Artigo always knew that
the 2 lots were co-owned by the De Castros and their
other siblings. They claim that failure to implead them
as indispensable parties is fatal to the complaint since
Artigo would be paid with funds co-owned by the
siblings.
RTC ruled in favor of Artigo. CA affirmed, ruling that
Artigo’s complaint is not dismissible for failure to
implead as indispensable parties the other co-owners of
the 2 lot. It is not necessary to implead the other co-
owners since the action is exclusively based on a
contract of agency between Artigo and De Castro.
Issue: Whether the complaint should be dismissed for
failure to implead other co-owners as indispensable
parties
SC: An indispensable party is one whose interest will be
affected by the court's action in the litigation, and
without whom no final determination of the case can be
had. The joinder of indispensable parties is mandatory
and courts cannot proceed without their presence.
Whenever it appears to the court in the course of a
proceeding that an indispensable party has not been
joined, it is the duty of the court to stop the trial and
order the inclusion of such party.
However, the rule on mandatory joinder of
indispensable parties is not applicable to the instant
case.
Constante signed the note as owner and as
representative of the other co-owners. Under this note,
a contract of agency was clearly constituted between
Constante and Artigo. Whether Constante appointed
Artigo as agent, in Constante's individual or
representative capacity, or both, the De Castros cannot
seek the dismissal of the case for failure to implead the
other co-owners as indispensable parties. The De
Castros admit that the other co-owners are solidarily
liable under the contract of agency, citing Article 1915
of the Civil Code.
The solidary liability of the 4 co-owners, however,
militates against the De Castros' theory that the other
48
co-owners should be impleaded as indispensable
parties. When the law expressly provides for solidarity
of the obligation, as in the liability of co-principals in a
contract of agency, each obligor may be compelled to
pay the entire obligation. The agent may recover the
whole compensation from any one of the co-principals,
as in this case. Article 1216 of the Civil Code provides
that a creditor may sue any of the solidary debtors.
Mandawer Galleon Trade vs Isidro: Respondents filed a
case for illegal dismissal and non-payment of overtime
pay, holiday pay, 13th month pay, and service incentive
leave pay against petitioner with the NLRC. They
asserted that they were dismissed from employment
without just cause and without due process. Petitioners
averred that the respondents were not their employees
but were independent contractors. LA found
respondents illegally dismissed from employment.
Petitioners filed an appeal before the NLRC but failed to
attach a certification of non-forum shopping to their
notice of appeal, as required by Section 4, Rule VI of the
NLRC Rules of Procedure. NLRC dismissed the appeal for
being fatally defective and affirmed LA’s decision with
finality. Petitioners filed an MR but it was denied by the
NLRC. An entry for judgment was issued by the NLRC
stating that the resolution had become final and
executory.
Petitioners filed a petition for certiorari under Rule 65
before the CA. CA dismissed the petition for certiorari
and affirmed NLRC. Their MR was also denied by the CA.
Petitioners aver that the CA should have granted the
petition and decided the case on the merits, considering
that they had belatedly complied with the requirement
of a certification for non-forum shopping.
Issue: Whether the CA was correct in summarily
dismissing the petition for being filed without a
certification for non-forum shopping
SC: No. Non-compliance with the required certification
is fatal. To curb the malpractice of forum shopping,
Section 5, Rule 7 of the 1997 Rules of Civil Procedure,
ordains that a violation thereof would constitute
contempt of court and be cause for the summary
dismissal of the petition, without prejudice to the taking
of appropriate action against the counsel of the party
concerned.
 REMEDIAL LAW I (BRONDIAL)
The filing of a certificate for non-forum shopping is
mandatory in initiatory pleadings. The subsequent
compliance with the requirement does not excuse a
party’s failure to comply therewith in the first instance.
In those cases where the Court excused non-compliance
with the requirement to submit a certificate of non-
forum shopping, it found special circumstances or
compelling reasons which made the strict application of
[Section 5, Rule 7, ROC] clearly unjustified or
inequitable. In this case, however, the petitioners
offered no valid justification for their failure to comply
with the circular.
Non-compliance with the requirement on, or
submission of defective, verification is not necessarily
fatally defective.
In Altres v. Empleo:
1) A distinction must be made between:
a. non-compliance with the requirement on or
submission of defective verification, and
b. non-compliance with the requirement on or
submission of defective certification against forum
shopping.
2) As to verification, non-compliance therewith or a
defect therein does not necessarily render the pleading
fatally defective. The court may order its submission or
correction or act on the pleading if the attending
circumstances are such that strict compliance with the
Rule may be dispensed with in order that the ends of
justice may be served thereby.
3) Verification is deemed substantially complied with
when one who has ample knowledge to swear to the
truth of the allegations in the complaint or petition signs
the verification, and when matters alleged in the
petition have been made in good faith or are true and
correct.
4) As to certification against forum shopping, non-
compliance therewith or a defect therein, unlike in
verification, is generally not curable by its subsequent
submission or correction thereof, unless there is a need
to relax the Rule on the ground of "substantial
compliance" or presence of "special circumstances or
compelling reasons."
49
C. Allegations in Pleadings
Rule 8, Section 1. In general. — Every pleading shall
contain in a methodical and logical form, a plain, concise
and direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the case
may be, omitting the statement of mere evidentiary
facts.
If a defense relied on is based on law, the pertinent
provisions thereof and their applicability to him shall be
clearly and concisely stated.
Rule 8, Section 2. Alternative causes of action or
defenses. — A party may set forth two or more
statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense
or in separate causes of action or defenses. When two
or more statements are made in the alternative and one
of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of
one or more of the alternative statements.
Rule 8, Section 3. Conditions precedent. — In any
pleading a general averment of the performance or
occurrence of all conditions precedent shall be
sufficient.
Rule 8, Section 4. Capacity. — Facts showing the
capacity of a party to sue or be sued or the authority of
a party to sue or be sued in a representative capacity or
the legal existence of an organized association of person
that is made a party, must be averred. A party desiring
to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial,
which shall include such supporting particulars as are
peculiarly within the pleader's knowledge.
Rule 8, Section 5. Fraud, mistake, condition of the
mind. — In all averments of fraud or mistake the
circumstances constituting fraud or mistake must be
stated with particularity. Malice, intent, knowledge, or
other condition of the mind of a person may be averred
generally.
Rule 8, Section 6. Judgment. — In pleading a judgment
or decision of a domestic or foreign court, judicial or
 REMEDIAL LAW I (BRONDIAL)
quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.
Actionable Documents
Rule 8, Section 7. Action or defense based on
document. — Whenever an action or defense is based
upon a written instrument or document, the substance
of such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may
with like effect be set forth in the pleading.
Actionable documents – are those which is the basis of
one’s claim or defense.
How do you allege an actionable document? Section 7
provides the answer. To allege an actionable document,
you either (1) copy the document verbatim in your
pleading; or (2) copy the basis of your claim and attach a
copy of the document.
Use the first mode if your document is short like a
promissory note. Use the second mode if your
document is quite lengthy like a contract of mortgage
consisting of 20 pages.
Rule 8, Section 8. How to contest such documents. —
When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding
pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party, under
oath specifically denies them, and sets forth what he
claims to be the facts, but the requirement of an oath
does not apply when the adverse party does not appear
to be a party to the instrument or when compliance
with an order for an inspection of the original
instrument is refused.
You contest the actionable document by specifically
denying it under oath. The pleading must contain a jurat
(subscribed and sworn to before me). Otherwise, the
authenticity and due execution of the document are
deemed admitted. Only authenticity and due execution,
not the contents of the document.
50
Benguet Exploration, Inc. vs CA: Authenticity and due
execution constitutes only 4 things: (1) that the
document was signed; (2) that the document complied
with all the formalities under the laws; (3) that when
the document was signed, it was in the original form
without any alteration; and (4) that the document was
delivered.
Petitioner contends that the genuineness and due
execution of the documents presented, i.e., Bill of
Lading, Certificate of Loading, Certificate of Weight,
Mate’s Receipt, were properly established by the
testimony of its witness, Ernesto Cayabyab, and that as
a result, there is a prima facie presumption that their
contents are true.
This contention has no merit. The admission of the due
execution and genuineness of a document simply means
that “the party whose signature it bears admits that he
signed it or that it was signed by another for him with
his authority; that at the time it was signed it was in
words and figures exactly as set out in the pleading of
the party relying upon it; that the document was
delivered; and that any formal requisites required by
law, such as a seal, an acknowledgment, or revenue
stamp, which it lacks, are waived by him.” Genuineness
and due execution of the instrument means nothing
more than that the instrument is not spurious,
counterfeit, or of different import on its face from the
one executed.
It is equally true, however, that ¾ execution can only
refer to the actual making and delivery, but it cannot
involve other matters without enlarging its meaning
beyond reason. The only object of the rule was to
enable a plaintiff to make out a prima facie, not a
conclusive case, and it cannot preclude a defendant
from introducing any defense on the merits which does
not contradict the execution of the instrument
introduced in evidence.
Respondents presented evidence which casts doubt on
the veracity of these documents. Switzerland Insurance
presented Export Declaration No. 1131/85 which
petitioner’s own witness, Rogelio Lumibao, prepared, in
which it was stated that the copper concentrates to be
transported to Japan had a gross weight of only 2,050
wet metric tons or 1,845 dry metric tons, 10 percent
more or less. On the other hand, Certified Adjusters,
 REMEDIAL LAW I (BRONDIAL)
Inc., to which Switzerland Insurance had referred
petitioner’s claim, prepared a report which showed that
a total of 2,451.630 wet metric tons of copper
concentrates were delivered at Poro Point. As the
report stated: It is to be pointed out that there were no
actual weighing made at Benguet Exploration’s site. The
procedure done was that after weighing the trucks
before and after unloading at Poro Point, the weight of
the load was determined and entered on “Philex” Trip
Ticket which was later on copied and entered by the
truck driver on Benguet Exploration, Inc.’s Transfer Slip.
Considering the discrepancies in the various documents
showing the actual amount of copper concentrates
transported to Poro Point and loaded in the vessel,
there is no evidence of the exact amount of copper
concentrates shipped. Thus, whatever presumption of
regularity in the transactions might have risen from the
genuineness and due execution of the Bill of Lading,
Certificate of Weight, Certificate of Loading, and Mate’s
Receipt was successfully rebutted by the evidence
presented by Switzerland Insurance which showed
disparities in the actual weight of the cargo transported
to Poro Point and loaded on the vessel. This fact is
compounded by the admissions made by Lumibao and
Cayabyab that they had no personal knowledge of the
actual amount of copper concentrates loaded on the
vessel.
In the face of these admissions, appellant’s claim of loss
or shortage is placed in serious doubt, there being no
other way of verifying the accuracy of the figures
indicated in appellant’s documentary evidence that
could confirm the alleged loss of 355.736 MT.
Notwithstanding the figure stated in Bill of Lading No.
PP/0-1 that 2,243.496 WMT of copper concentrates was
loaded by appellant at the port of origin, it should be
stressed that this is merely prima facie evidence of the
receipt by the carrier of said cargo as described in the
bill of lading. Thus, it has been held that recitals in the
bill of lading as to the goods shipped raise only a
rebuttable presumption that such goods were delivered
for shipment and as between the consignor and a
receiving carrier, the fact must outweigh the recital.
Resultingly, the admissions elicited from appellant’s
witnesses that they could not confirm the accuracy of
the figures indicated in their documentary evidence
with regard to the actual weight of the cargo loaded at
the port of origin and that unloaded at the port of
51
destination, in effect rebuts the presumption in favor of
the figure indicated in the bill of lading.
Rule 8, Section 9. Official document or act. — In
pleading an official document or official act, it is
sufficient to aver that the document was issued or the
act done in compliance with law.
Specific denial
Rule 8, Section 10. Specific denial. — A defendant must
specify each material allegation of fact the truth of
which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which
he relies to support his denial. Where a defendant
desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall
deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as
to the truth of a material averment made to the
complaint, he shall so state, and this shall have the
effect of a denial.
Rule 8, Section 11. Allegations not specifically denied
deemed admitted. — Material averment in the
complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when
not specifically denied. Allegations of usury in a
complaint to recover usurious interest are deemed
admitted if not denied under oath.
Rule 8, Section 12. Striking out of pleading or matter
contained therein. — Upon motion made by a party
before responding to a pleading or, if no responsive
pleading is permitted by these Rules, upon motion
made by a party within twenty (20) days after the
service of the pleading upon him, or upon the court's
own initiative at any time, the court may order any
pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous
matter be stricken out therefrom.
D. Rule 9
Effect of Failure to Plead
Residual prerogatives, as laid down in Katon vs Palanca,
is the authority of the appellate court to dismiss a case
motu proprio pursuant to the grounds under Section 1
 REMEDIAL LAW I (BRONDIAL)
of Rule 9. They are: res judicata, litis pendentia,
prescription, lack of jurisdiction and statute of
limitation.
Rule 9, Section 1. Defenses and objections not pleaded.
— Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same cause,
or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
Tie this up with Section 3, Rule 17: Dismissal due to
fault of plaintiff. — If, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation
of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time,
or to comply with these Rules or any order of the court,
the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon
the merits, unless otherwise declared by the court.
Thus, the 8 grounds by which the court can dismiss a
case motu proprio are:
(1) res judicata (Section 1, Rule 9)
(2) litis pendentia (Section 1, Rule 9)
(3) lack of jurisdiction (Section 1, Rule 9)
(4) statute of limitation (Section 1, Rule 9)
(5) failure of any party to appear for the presentation
of evidence in chief (Section 3, Rule 17)
(6) plaintiff’s failure to prosecute his action for an
unreasonable length of time (Section 3, Rule 17)
(7) plaintiff’s failure to comply with these Rules or any
order of the court (Section 3, Rule 17)
(8) the rule in summary procedure
52
Waiver of Defenses and Objections; Default
Rule 9, Section 2. Compulsory counterclaim, or cross-
claim, not set up barred. — A compulsory counterclaim,
or a cross-claim, not set up shall be barred.
Rule 9, Section 3. Default; declaration of. — If the
defending party fails to answer within the time allowed
therefor, the court shall, upon motion of the claiming
party with notice to the defending party, and proof of
such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires the
claimant to submit evidence. Such reception of evidence
may be delegated to the clerk of court.
(a) Effect of order of default. — A party in default shall
be entitled to notice of subsequent proceedings but not
to take part in the trial.
(b) Relief from order of default. — A party declared in
default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order
of default upon proper showing that his failure to
answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on such
terms and conditions as the judge may impose in the
interest of justice.
(c) Effect of partial default. — When a pleading asserting
a claim states a common cause of action against several
defending parties, some of whom answer and the
others fail to do so, the court shall try the case against
all upon the answers thus filed and render judgment
upon the evidence presented.
(d) Extent of relief to be awarded. — A judgment
rendered against a party in default shall not exceed the
amount or be different in kind from that prayed for nor
award unliquidated damages.
(e) Where no defaults allowed. — If the defending party
in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists,
and if there is no collusion, to intervene for the State in
 REMEDIAL LAW I (BRONDIAL)
order to see to it that the evidence submitted is not
fabricated.
Under the 1997 Rules of Court, when may a party be
declared in default? There is only one ground for
declaring a party in default: failure to file responsive
pleading within the required period. Now, there is no
more declaration of a party as in default that used to be
in the 1960 Rules of Court that has been deleted by the
1997 Rules of Court.
A files a case against B for unlawful detainer and forcible
entry and summons was served upon B on January 5. On
February 5, B has not yet filed an answer. Can B be
declared in default for failure to file his answer? No, the
case is covered by the Rules of Summary Procedure and
an order of default or a motion to declare defendant in
default is a prohibited pleading.
If there is only one ground, the 2 other grounds in the
1960 Rules of Court to declare a party as in default have
been eliminated: (1) when a party fails to appear at the
pre-trial; or (2) the party fails to file a pre-trial brief.
Now, if the plaintiff does not appear at the pre-trial, it
will be nonsuited and result to a dismissal. Defendant
can present evidence ex parte on his counterclaim. If
the defendant fails to appear at the pre-trial or submit a
pre-trial brief, the plaintiff can present evidence ex
parte. There is no need to declare them as in default.
To declare a party in default because of failure to file
responsive pleading within the required period, the
other party must file a motion. There is no declaration
in default motu proprio. It must always be through a
litigious/litigated motion.
There are 2 kinds of motions: (1) litigated motion and
(2) non-litigated (or oral) motion. Since a motion to
declare a party in default is a litigated motion, it must
comply with section 4 (must be in writing, and comply
with 3-day notice rule), section 5 (10-day setting rule),
and section 6 (copy of pleading must be served upon
the adverse party) of Rule 15.
Rule 15, Section 4. Hearing of motion. — Except for
motions which the court may act upon without
prejudicing the rights of the adverse party, every
written motion shall be set for hearing by the applicant.
53
Every written motion required to be heard and the
notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at
least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter
notice.
Rule 15, Section 5. Notice of hearing. — The notice of
hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which
must not be later than ten (10) days after the filing of
the motion.
Rule 15, Section 6. Proof of service necessary. — No
written motion set for hearing shall be acted upon by
the court without proof of service thereof.
3-day notice rule – a copy of the pleading must be
received 3 days before the scheduled hearing (not must
be sent). If the motion day is a Friday, it must be
received not later than Tuesday. Under computation of
time in Rule 22, you must always exclude the first day
and include the last day.
Rule 22, Section 1. How to compute time. — In
computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any
applicable statute, the day of the act or event from
which the designated period of time begins to run is to
be excluded and the date of performance included. If
the last day of the period, as thus computed, falls on a
Saturday a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the next
working day.
10-day setting rule – you have to set the hearing within
a period of 10 days from the filing of a motion. If there is
a conflict between the 2, what should prevail over
which? The 3-day notice rule must prevail, because the
10-day setting rule is addressed to the court while the 3-
day notice rule is addressed to the adverse party. The
adverse party must not be prejudiced.
When the party is supposed to file a responsive pleading
within 15 days from receipt of the summons (ex.
defendant receives the summons with the copy of the
complaint) and he fails to file his answer to the
complaint within 15 days from receipt thereof, the
 REMEDIAL LAW I (BRONDIAL)
plaintiff can go to the court and file a motion to declare
the defendant in default. It is a litigated motion and it
must comply with sections 4, 5 and 6 of Rule 15.
The plaintiff may also be declared in default in a case
where the defendant files a permissive counterclaim
(thus, the plaintiff must file an answer). What is the
effect if a party is declared in default? He loses his
personality before the court. When he loses his
personality before the court, he can no longer
participate in the proceedings.
How can he regain his personality before the court?
There is only one way according to the SC which was
discussed in Banco de Oro vs Tansipek: Even if you lose
your personality before the court because you have
been declared in default, you are still entitled to notices.
You are only deprived of participation in the trial but
you are still entitled to processes. In this case, the
defaulted party filed a motion for reconsideration. SC
held that a motion for reconsideration is not a valid
remedy. There is one remedy: a motion to set aside the
order of default. This motion is also a litigated motion
and must conform to Sections 4, 5, 6 of Rule 15. When
the motion to set aside the order of default is granted
by the court, then you regain your personality before
the court.
If you do not regain your personality in court, what
follows an order of default? A judgment by default.
While there is only one remedy against an order of
default (which is a motion to set aside the order of
default), there are several remedies against a judgment
by default. Because it is a judgment, all the remedies
against a judgment may be availed of such as motion for
reconsideration, motion for new trial and appeal.
General rule: An order of default must always precede a
judgment by default.
Exception: Where a judgment by default may be
granted by the court without being preceded by an
order of default: refusal to comply with the modes of
discovery (Rule 29, Section 3(c)).
Rule 29, Section 3. Other consequences. — If any party
or an officer or managing agent of a party refuses to
obey an order made under section 1 of this Rule
requiring him to answer designated questions, or an
54
order under Rule 27 to produce any document or other
thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or
other property or an order made under Rule 28
requiring him to submit to a physical or mental
examination, the court may make such orders in regard
to the refusal as are just, and among others the
following: xxx
(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof,
or rendering a judgment by default against the
disobedient party; xxx
Banco de Oro vs Tansipek: JOCI, a domestic corporation
engaged in construction, filed a complaint against PCIB
(Bank). JOCI contracted with Duty Free Phils. to
construct a store in Mandaue. Construction went on,
and JOCI authorized Tansipek to collect payments for it.
Initial payments were deposited to JOCI’s account.
However, a check was not deposited to its account.
Tansipek deposited the check to his personal account in
PCIB. PCIB allowed it despite the check being crossed for
the payee’s account only, and that respondent lacked
authority to endorse it. PCIB refused to pay. JOCI
demanded payment of the check. PCIB filed a motion to
dismiss but RTC denied it. PCIB filed its answer and a
third-party complaint against Tansipek. PCIB alleged in
the third-party complaint that Tansipek presented to it a
copy of the board resolution allowing him to deposit the
check in his personal account.
Tansipek was given extension of time to file his answer,
but he failed so he was declared in default. He filed a
Motion to Reconsider the Default Order, but it was
denied. He filed a petition for certiorari with the CA
assailing the default order as well as the denial of the
motion for reconsideration. CA dismissed his petition for
failure to attach the orders and denied his motion for
being filed out of time. The RTC later promulgated a
ruling on the civil case ordering Tansipek and PCIB to
pay JOCI. Tansipek appealed it to the CA. CA ruled that
RTC erred in allowing the motion to declare Tansipek in
default, and remanded the case to the RTC.
SC: A motion to reconsider the default order is not the
proper remedy. He should have filed a motion to lift the
default order.
 REMEDIAL LAW I (BRONDIAL)
Rule 9, Section 3(b): Relief from order of default.— A
party declared in default may at any time after notice
thereof and before judgment file a motion under oath
to set aside the order of default upon proper showing
that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default
may be set aside on such terms and conditions as the
judge may impose in the interest of justice.
A Motion to Lift Order of Default is different from an
ordinary motion in that the Motion should be verified;
and must show fraud, accident, mistake or excusable
neglect, and meritorious defenses. The allegations of
(1) fraud, accident, mistake or excusable neglect, and (2)
of meritorious defenses must concur.
Commission on Appointments (COA) vs Paler: Celso
Paler was a Supervising Legislative Staff Officer II (SG-
24) with the Technical Support Service of the COA. He
submitted a request for VL for 74 working days - from
August 1 to November 14, 2003. The Director III of
Technical Support Service submitted to the Commission
Secretary his comments/recommendation on Paler’s
application which principally states that said application
for Leave may be acted upon depending on the
completion of his work load and submission of the
medical certificate.
Since he already had an approved leave from June 9 to
July 30, 2003, Paler left for the US on June 8, 2003,
without verifying whether his application for leave (for
August 1 – November 14, 2003) was approved or
denied.
In a letter dated September 16, 2003, the Commission
Chairman informed Paler that he was being dropped
from the roll of employees effective said date, due to his
continuous 30-day absence without leave and in
accordance with Section 63, Civil Service Commission
(CSC) Memorandum Circular No. 14, s. 1999. Paler's son
received the letter on September 23, 2003.
Paler moved for reconsideration but this was denied on
February 20, 2004, on the ground that it was filed
beyond the 15-day reglementary period. The denial was
received by Paler's son on March 18, 2004.
55
On appeal, the CSC reversed and set aside the
Commission Chairman's decision. The Commission filed
a motion for reconsideration but this was denied by the
CSC. This constrained petitioner to file with the CA a
petition for review under Rule 43 of the Rules of Court.
Since Paler had in the meantime already reached the
compulsory age of retirement on July 28, 2005 and was
no longer entitled to reinstatement, the CA affirmed
with modification CSC resolutions. Petitioner filed a
motion for reconsideration but this was denied by the
CA.
Issue: Whether or not the CSC was correct to entertain
Paler’s appeal despite it being filed beyond the 15-day
reglementary period.
SC: Yes. Section 72 of CSC Memorandum Circular No. 19,
s. 1999, provides for the period of appeal for non-
disciplinary actions, to wit: Section 72. When and Where
to File. - A decision or ruling of a department or agency
may be appealed within fifteen (15) days from receipt
thereof by the party adversely affected to the Civil
Service Regional Office and finally, to the Commission
Proper within the same period. xxx
Paler's son received the letter from the Commission
Chairman denying Paler’s MR on March 18, 2004. Thus,
Paler’s had until April 2, 2004 within which to file his
appeal with the CSC. It was filed, however, only on April
5, 2004. Nevertheless, the CSC entertained the appeal in
the interest of substantial justice.
We agree with the CSC. We uphold its decision to relax
the procedural rules because Paler's appeal was
meritorious. When substantial justice dictates it,
procedural rules may be relaxed in order to arrive at a
just disposition of a case. The purpose behind limiting
the period of appeal is to avoid unreasonable delay in
the administration of justice and to put an end to
controversies. A one-day delay, as in this case, does not
justify denial of the appeal where there is absolutely no
indication of intent to delay justice on the part of Paler
and the pleading is meritorious on its face. It bears
stressing that the case before the CSC involves the
security of tenure of a public officer sacrosanctly
protected by the Constitution. Public interest requires a
resolution of the merits of the appeal instead of
dismissing the same based on a strained and inordinate
 REMEDIAL LAW I (BRONDIAL)
application of Section 49 (a) of the CSC Revised Rules of
Procedure.
Oaminal vs Castillo: Henry Oaminal filed a complaint for
collection against Respondents Pablito and Guia Castillo
with the RTC. The summons together with the
complaint was served upon Ester Fraginal, secretary of
Mrs. Castillo. Respondents filed their ‘Urgent Motion to
Declare Service of Summons Improper and Legally
Defective’ alleging that the Sheriff's Return has failed to
comply with Section (1), Rule 14 of the Rules of Court or
substituted service of summons.
Petitioner filed an Omnibus Motion to Declare
Respondents in Default and to Render Judgment
because no answer was filed by the latter. Respondents
filed the following: a. Omnibus Motion Ad Cautelam to
Admit Motion to Dismiss and Answer with Compulsory
Counter-claim; b. Urgent Motion to Dismiss; and c.
Answer with Compulsory Counter-Claim. The judge
denied the Motion to Dismiss, admitted their Answer,
and set the pre-trial. Respondents filed an ‘Urgent
Motion to Inhibit Ad Cautelam’ against Judge *Zapatos+.
Judge [Zapatos] denied the motion. [Respondents] filed
an Urgent Omnibus Motion for Reconsideration. Judge
*Zapatos+ ruled that *respondents’+ ‘Omnibus Motion Ad
Cautelam to Admit Motion to Dismiss and Answer with
Counterclaim’ was filed outside the period to file
answer, hence he (1) denied the Motion to Admit
Motion to Dismiss and Answer; (2) declared
[respondents] in default; and (3) ordered Oaminal to
present evidence ex-parte, [failing] which, the case will
be dismissed.
Judge [Zapatos] ruled in favor of the petitioner.
Respondents filed with the CA a Petition for certiorari.
CA ruled that RTC did not validly acquire jurisdiction
over respondents, because the summons had been
improperly served on them. It based its finding on the
Sheriff’s Return, which did not contain any averment
that effort had been exerted to personally serve the
summons on them before substituted service was
resorted to.
Issue: Whether the trial court acquired jurisdiction over
respondents, although summons was served upon the
secretary.
56
SC: Yes. The receipt of the summons by the legal
secretary of the respondents is deemed proper, because
they admit the actual receipt thereof, but merely
question the manner of service. Moreover, when they
asked for affirmative reliefs in several motions and
thereby submitted themselves to the jurisdiction of the
trial court, whatever defects the service of summons
may have had were cured.
In civil cases, the trial court acquires jurisdiction over
the person of the defendant either by the service of
summons or by the latter’s voluntary appearance and
submission to the authority of the former. Where the
action is in personam and the defendant is in the
Philippines, the service of summons may be made
through personal or substituted service in the manner
provided for by Sections 6 and 7 of Rule 14 of the
Revised Rules of Court.
Personal service of summons is preferred over
substituted service. Resort to the latter is permitted
when the summons cannot be promptly served on the
defendant in person and after stringent formal and
substantive requirements have been complied with.
For substituted service of summons to be valid, it is
necessary to establish the following circumstances: (a)
personal service of summons within a reasonable time
was impossible; (b) efforts were exerted to locate the
party; and (c) the summons was served upon a person
of sufficient age and discretion residing at the party’s
residence or upon a competent person in charge of the
party’s office or regular place of business. It is likewise
required that the pertinent facts proving these
circumstances are stated in the proof of service or
officer’s return.
The Sheriff’s Return failed to state that efforts had been
made to personally serve the summons on respondents.
Neither did the Return indicate that it was impossible to
do so within a reasonable time.
Nonetheless, nothing in the records shows that
respondents denied actual receipt of the summons
through their secretary. Their “Urgent Motion to
Declare Service of Summons Improper and Legally
Defective” did not deny receipt thereof; it merely
assailed the manner of its service. In fact, they admitted
in their Motion that the “summons, together with the
 REMEDIAL LAW I (BRONDIAL)
complaint, was served by the Sheriff on Ester Fraginal,
secretary of the defendants at No. 7, 21st Avenue,
Cubao, Quezon City on 30 May 2000.”
There is likewise no showing that respondents had
heretofore pursued the issue of lack of jurisdiction;
neither did they reserve their right to invoke it in their
subsequent pleadings. If at all, what they avoided
forfeiting and waiving -- both in their Omnibus Motion
ad Cautelam to Admit Motion to Dismiss and Answer
with Compulsory Counter-Claim and in their Motion to
Dismiss -- was their right to invoke the grounds of
improper venue and litis pendentia.
Verily, respondents did not raise in their MTD the issue
of jurisdiction over their persons; they raised only
improper venue and litis pendentia. Hence, whatever
defect there was in the manner of service should be
deemed waived.
Assuming arguendo that the service of summons was
defective, such flaw was cured and respondents are
deemed to have submitted themselves to the
jurisdiction of the trial court when they filed an
Omnibus Motion to Admit the Motion to Dismiss and
Answer with Counterclaim, an Answer with
Counterclaim, a Motion to Inhibit, and a Motion for
Reconsideration and Plea to Reset Pre-trial. The filing of
Motions seeking affirmative relief -- to admit answer,
for additional time to file answer, for reconsideration of
a default judgment, and to lift order of default with
motion for reconsideration -- are considered voluntary
submission to the jurisdiction of the court. Having
invoked the trial court’s jurisdiction to secure
affirmative relief, respondents cannot -- after failing to
obtain the relief prayed for -- repudiate the very same
authority they have invoked.
Asia Const. & Dev. Corp. (ACDC) vs CA: ACDC leased
Caterpillar generator sets and Amida mobile
floodlighting systems from Monark Equipment
Corporation (MEC) during the period of March 13 to July
15, 1998 but failed, despite demands, to pay the rentals
in the amount of P4, 313,935.00. From July 14 to August
25, 1998, various equipment from MEC were, likewise,
leased by ACDC for the latter’s power plant in Mauban,
Quezon, and that there was still a balance of
P456,666.67. ACDC also purchased and took custody of
various equipment parts from MEC for P237,336.20
57
which, despite demands, ACDC failed to pay. With all
these allegations, MEC filed a complaint for sum of
money with damages (RTC QC) against ACDC.
ACDC filed a motion to file and admit answer with third
party complaint against Becthel Overseas Corporation. It
admitted its indebtedness to MEC but imposes the
special and affirmative defense that Becthel failed and
refused to pay its overdue obligation in connection with
the leased equipment used by ACDC to comply with its
contracted services. Apparently, Becthel used all the
equipment covered by lease for a construction project
and ACDC was not yet paid for its services. ACDC also
reiterated this in the 3rd party complaint praying for
dismissal of MEC’s claim and order for Becthel to pay its
obligation.
MEC opposed this motion on the ground that ACDC
already admitted its obligation to MEC which is
independent from the transaction with Becthel. The
third party complaint will only cause undue delays. MEC
filed a motion for summary judgment on the ground
that there was no genuine issue on ACDC’s obligation
and that the 3rd party complaint must be litigated
separately. In MEC’s reply to the special affirmative
defense, it argued that this was a negative pregnant.
TC: motion for leave to file 3rd party complaint is
denied; motion for summary judgment granted – trial
court considered this as motion for judgment on the
pleadings. DECISION IN FAVOR OF MEC. CA: AFFIRMED
ACDC argues that although it admitted the obligation to
MEC, the 3rd party complaint tendered an issue of
whether the MEC’s claim is connected with the third-
party claim. This is a genuine issue that must be
litigated.
Issue: Whether or not the third party complaint was
proper.
SC: No. The purpose of Section 11, Rule 6 of the Rules of
Court is to permit a defendant to assert an independent
claim against a third-party which he, otherwise, would
assert in another action, thus preventing multiplicity of
suits. All the rights of the parties concerned would then
be adjudicated in one proceeding. This is a rule of
procedure and does not create a substantial right.
 REMEDIAL LAW I (BRONDIAL)
Neither does it abridge, enlarge, or nullify the
substantial rights of any litigant. This right to file a third-
party complaint against a third-party rests in the
discretion of the trial court. The third-party complaint is
actually independent of, separate and distinct from the
plaintiff’s complaint, such that were it not for the rule, it
would have to be filed separately from the original
complaint.
A prerequisite to the exercise of such right is that some
substantive basis for a third-party claim be found to
exist, whether the basis be one of indemnity,
subrogation, contribution or other substantive right.
The bringing of a third-party defendant is proper if he
would be liable to the plaintiff or to the defendant or
both for all or part of the plaintiff’s claim against the
original defendant, although the third-party defendant’s
liability arises out of another transaction. The defendant
may implead another as third-party defendant (a) on an
allegation of liability of the latter to the defendant for
contribution, indemnity, subrogation or any other relief;
(b) on the ground of direct liability of the third-party
defendant to the plaintiff; or (c) the liability of the third-
party defendant to both the plaintiff and the defendant.
There must be a causal connection between the claim of
the plaintiff in his complaint and a claim for
contribution, indemnity or other relief of the defendant
against the third-party defendant.
Common liability is the very essence for contribution.
Contribution is a payment made by each, or by any of
several having a common liability of his share in the
damage suffered or in the money necessarily paid by
one of the parties in behalf of the other or others. The
rule on common liability is fundamental in the action for
contribution. The test to determine whether the claim
for indemnity in a third-party complaint is, whether it
arises out of the same transaction on which the
plaintiff’s claim is based, or the third-party plaintiff’s
claim, although arising out of another or different
contract or transaction, is connected with the plaintiff’s
claim.
The claims of the respondent, as plaintiff in the RTC,
against the petitioner as defendant therein, arose out of
the contracts of lease and sale; such transactions are
different and separate from those between Becthel and
the petitioner as third-party plaintiff for the
construction of the latter’s project in Mauban, Quezon,
58
where the equipment leased from the respondent was
used by the petitioner. The controversy between the
respondent and the petitioner, on one hand, and that
between the petitioner and Becthel, on the other, are
thus entirely distinct from each other. There is no
showing in the proposed third-party complaint that the
respondent knew or approved the use of the leased
equipment by the petitioner for the said project in
Quezon. Becthel cannot invoke any defense the
petitioner had or may have against the claims of the
respondent in its complaint, because the petitioner
admitted its liabilities to the respondent for the amount
of P5,075,335.86. The barefaced fact that the petitioner
used the equipment it leased from the respondent in
connection with its project with Becthel does not
provide a substantive basis for the filing of a third-party
complaint against the latter. There is no causal
connection between the claim of the respondent for the
rental and the balance of the purchase price of the
equipment and parts sold and leased to the petitioner,
and the failure of Becthel to pay the balance of its
account to the petitioner after the completion of the
project in Quezon.
IV. RULES 10 TO 14: AMENDMENTS TO SUMMONS
A. Amendments and Supplemental Pleadings
Section 1. Amendments in general. — Pleadings may be
amended by adding or striking out an allegation or the
name of any party, or by correcting a mistake in the
name of a party or a mistaken or inadequate allegation
or description in any other respect, so that the actual
merits of the controversy may speedily be determined,
without regard to technicalities, and in the most
expeditious and inexpensive manner.
Kinds of Amendments
There are 2 sets of classifications of amendments both
in civil and criminal cases.
 Substantial vs Formal
 REMEDIAL LAW I (BRONDIAL)
o Substantial amendment – when such amendment
would be prejudicial to a party
o Formal amendment – is not prejudicial to a party
because it is only amended as to the form
Section 4. Formal amendments. — A defect in the
designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the
court at any stage of the action, at its initiative or on
motion, provided no prejudice is caused thereby to the
adverse party.
 As a matter of right vs by leave of court (applies in
both civil and criminal but the time frame differs)
o In civil cases, amendment is a matter of right
before the responsive pleading is served
Section 2. Amendments as a matter of right. — A party
may amend his pleading once as a matter of right at any
time before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) days after it
is served.
o In criminal cases, amendment is a matter of right
before arraignment
o Thereafter, it is already by leave of court. If you
seek amendment, you have to precede it with a
motion for leave to admit amended pleading.
o Whether it is a matter of right or by leave of court,
it can be both formal or substantive.
Section 3. Amendments by leave of court. — Except as
provided in the next preceding section, substantial
amendments may be made only upon leave of court.
But such leave may be refused if it appears to the court
that the motion was made with intent to delay. Orders
of the court upon the matters provided in this section
shall be made upon motion filed in court, and after
notice to the adverse party, and an opportunity to be
heard.
A files a case against B. Summons was served upon B.
Two days after receiving the summons, B files his
answer. Can A still amend the complaint as a matter of
59
right? Yes. The Rules says before the responsive
pleading is “served,” not “filed.”
Remington Industrial Sales Corp vs CA: Petitioner filed a
complaint for sum of money and damages arising from
breach of contract. Among the defendants is
respondent British Steel. Respondent moved for the
dismissal of the complaint on the ground that it failed to
state a cause of action against it. RTC denied the motion
to dismiss, as well as the MR. Respondent filed a
petition for certiorari and prohibition before CA,
claiming that the complaint did not contain a single
averment that respondent committed any act or is
guilty of any omission in violation of petitioner’s legal
rights. Apart from the allegation in the complaint’s
“Jurisdictional Facts” that:
1.05. Defendants British Steel (Asia) Ltd. and Ferro
Trading Gmbh, while understood by the plaintiff as
mere suppliers of goods for defendant ISL, are
impleaded as party defendants pursuant to Section 13,
Rule 3 of the Revised Rules of Court
no other reference was made to respondent that would
constitute a valid cause of action against it. Since
petitioner failed to plead any cause of action against
respondent as alternative defendant under Section 13,
Rule 3, RTC should have ordered the dismissal of the
complaint insofar as respondent was concerned.
Petitioner sought to amend its complaint by
incorporating therein additional factual allegations
constitutive of its cause of action against respondent.
Pursuant to Section 2, Rule 10, petitioner maintained
that it can amend the complaint as a matter of right
because respondent has not yet filed a responsive
pleading thereto. Petitioner filed a Manifestation and
Motion with the CA stating that it had filed a Motion to
Admit Amended Complaint together with said Amended
Complaint before the RTC. Hence, petitioner prayed
that the proceedings in the special civil action be
suspended.
RTC granted petitioner’s Motion to Admit Amended
Complaint. CA granted the writ of certiorari and ordered
the respondent judge to dismiss without prejudice the
Complaint against respondent.
 REMEDIAL LAW I (BRONDIAL)
Can a complaint still be amended as a matter of right
before an answer has been filed, even if there was a
pending proceeding for its dismissal before the higher
court?
SC: Yes. Section 2, Rule 10 explicitly states that a
pleading may be amended as a matter of right before a
responsive pleading is served. This only means that
prior to the filing of an answer, the plaintiff has the
absolute right to amend the complaint whether a new
cause of action or change in theory is introduced. The
reason for this rule is implied in the subsequent Section
3 of Rule 10. Under this provision, substantial
amendment of the complaint is not allowed without
leave of court after an answer has been served, because
any material change in the allegations contained in the
complaint could prejudice the rights of the defendant
who has already set up his defense in the answer.
Conversely, it cannot be said that the defendant’s rights
have been violated by changes made in the complaint if
he has yet to file an answer thereto. In such an event,
the defendant has not presented any defense that can
be altered or affected by the amendment of the
complaint in accordance with Section 2 of Rule 10. The
defendant still retains the unqualified opportunity to
address the allegations against him by properly setting
up his defense in the answer. Considerable leeway is
thus given to the plaintiff to amend his complaint once,
as a matter of right, prior to the filing of an answer by
the defendant.
The right granted to the plaintiff under procedural law
to amend the complaint before an answer has been
served is not precluded by the filing of a motion to
dismiss or any other proceeding contesting its
sufficiency. Were we to conclude otherwise, the right
to amend a pleading under Section 2, Rule 10 will be
rendered nugatory and ineffectual, since all that a
defendant has to do to foreclose this remedial right is to
challenge the adequacy of the complaint before he files
an answer.
Moreover, amendment of pleadings is favored and
should be liberally allowed in the furtherance of justice
in order to determine every case as far as possible on its
merits without regard to technicalities. This principle is
generally recognized to speed up trial and save party
litigants from incurring unnecessary expense, so that a
60
full hearing on the merits of every case may be had and
multiplicity of suits avoided.
The remedy espoused by the CA in its assailed judgment
will precisely result in multiple suits, involving the same
set of facts and to which the defendants would likely
raise the same or, at least, related defenses. Plainly
stated, we find no practical advantage in ordering the
dismissal of the complaint against respondent and for
petitioner to re-file the same, when the latter can still
clearly amend the complaint as a matter of right. The
amendment of the complaint would not prejudice
respondents or delay the action, as this would, in fact,
simplify the case and expedite its disposition.
Furthermore, we do not agree with respondent’s claim
that it will be prejudiced by the admission of the
Amended Complaint because it had spent time, money
and effort to file its petition before the appellate court.
We cannot see how the result could be any different for
respondent, if petitioner merely re-filed the complaint
instead of being allowed to amend it. As adverted to
earlier, amendment would even work to respondent’s
advantage since it will undoubtedly speed up the
proceedings before the trial court. Consequently, the
amendment should be allowed in the case at bar as a
matter of right in accordance with the rules.
Section 5. Amendment to conform to or authorize
presentation of evidence. — When issues not raised by
the pleadings are tried with the express or implied
consent of the parties they shall be treated in all
respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend
does not effect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it
is not within the issues made by the pleadings, the court
may allow the pleadings to be amended and shall do so
with liberality if the presentation of the merits of the
action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance
to enable the amendment to be made.
Amendments vs Supplemental Pleadings
 REMEDIAL LAW I (BRONDIAL)
Section 6. Supplemental pleadings. — Upon motion of
a party the court may, upon reasonable notice and upon
such terms as are just, permit him to serve a
supplemental pleading setting forth transactions,
occurrences or events which have happened since the
date of the pleading sought to be supplemented. The
adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental
pleading.
Regarding supplemental pleadings, these are availed of
after the fact.
‘after the fact’ – if something new transpired after the
pleadings have been already in the hands of the court,
then you don’t file an amended pleading but rather a
supplemental pleading.
Under the Rules of Evidence, Rule 129 (What Need Not
Be Proved), judicial notice and judicial admissions need
not be proved. As to the latter, they are admissions in
the pleadings.
Rule 129, Section 4. Judicial admissions. — An
admission, verbal or written, made by the party in the
course of the proceedings in the same case, does not
require proof. The admission may be contradicted only
by showing that it was made through palpable mistake
or that no such admission was made.
When you amend the pleading, what happens to the
admissions there in the original pleading? They become
extra judicial admissions. Therefore, evidence must be
offered. Only admissions in the pleadings, not extra
judicial admissions.
Section 7. Filing of amended pleadings. — When any
pleading is amended, a new copy of the entire pleading,
incorporating the amendments, which shall be indicated
by appropriate marks, shall be filed.
Section 8. Effect of amended pleadings. — An amended
pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be
received in evidence against the pleader, and claims or
defenses alleged therein not incorporated in the
amended pleading shall be deemed waived.
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Rule on Amendments in Criminal Procedure is more
taxing. There is only one pleading in criminal actions,
the information; in civil actions, there are a lot of
pleadings that can be amended. In civil actions, we have
amendatory pleadings and suppletory pleadings. In
criminal procedure, there are no suppletory pleadings;
instead, they have amendments and substitutions.
B. Time/Period for Filing Responsive Pleadings
Answer
Section 1. Answer to the complaint. — The defendant
shall file his answer to the complaint within fifteen (15)
days after service of summons, unless a different period
is fixed by the court.
Section 2. Answer of a defendant foreign private
juridical entity. — Where the defendant is a foreign
private juridical entity and service of summons is made
on the government official designated by law to receive
the same, the answer shall be filed within thirty (30)
days after receipt of summons by such entity.
Section 3. Answer to amended complaint. — When the
plaintiff files an amended complaint as a matter of right,
the defendant shall answer the same within fifteen (15)
days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant
shall answer the amended complaint within ten (10)
days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third
(fourth, etc.)—party complaint, and amended
complaint-in-intervention.
Section 4. Answer to counterclaim or cross-claim. — A
counterclaim or cross-claim must be answered within
ten (10) days from service.
Section 5. Answer to third (fourth, etc.)-party
complaint. — The time to answer a third (fourth, etc.)—
party complaint shall be governed by the same rule as
the answer to the complaint.
 REMEDIAL LAW I (BRONDIAL)

Section 7. Answer to supplemental complain. — A amended amended entity and Section 15,
supplemental complaint may be answered within ten complaint complaint summons Rule 14.
(10) days from notice of the order admitting the same, when when is served
unless a different period is fixed by the court. The amendment amendmen upon the
answer to the complaint shall serve as the answer to the is NOT a t is a governme
supplemental complaint if no new or supplemental matter of matter of nt official
answer is filed. right right designated
Filing an Filing an by law
Reply answer answer to a (Section
under Rules third-, 12, Rule
Section 6. Reply. — A reply may be filed within ten (10) of Summary fourth- 14)
days from service of the pleading responded to. Procedure party
Filing an complaint
Section 8. Existing counterclaim or cross-claim. — A answer to a
compulsory counterclaim or a cross-claim that a supplement
defending party has at the time he files his answer shall al complaint
be contained therein. Counterclai
m or cross-
Section 9. Counterclaim or cross-claim arising after claim
answer. — A counterclaim or a cross-claim which either Reply
matured or was acquired by a party after serving his
pleading may, with the permission of the court, be C. Bill of Particulars
presented as a counterclaim or a cross-claim by
supplemental pleading before judgment. Section 1. When applied for; purpose. — Before
responding to a pleading, a party may move for a
Section 10. Omitted counterclaim or cross-claim. — definite statement or for a bill of particulars of any
When a pleader fails to set up a counterclaim or a cross- matter which is not averted with sufficient definiteness
claim through oversight, inadvertence, or excusable or particularity to enable him properly to prepare his
neglect, or when justice requires, he may, by leave of responsive pleading. If the pleading is a reply, the
court, set up the counterclaim or cross-claim by motion must be filed within ten (10) days from service
amendment before judgment. thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are
Section 11. Extension of time to plead. — Upon motion contained, and the details desired.
and on such terms as may be just, the court may extend
the time to plead provided in these Rules. Section 2. Action by the court. — Upon the filing of the
motion, the clerk of court must immediately bring it to
The court may also, upon like terms, allow an answer or the attention of the court which may either deny or
other pleading to be filed after the time fixed by these grant it outright, or allow the parties the opportunity to
Rules. be heard.

4 periods under Rule 11: 10, 15, 30 and 60 days. Section 3. Compliance with order. — If the motion is
granted, either in whole or in part, the compliance
10 15 30 60 therewith must be effected within ten (10) days from
(incomplete (incomplet notice of the order, unless a different period is fixed by
) e) the court. The bill of particulars or a more definite
Bill of Filing an When Extraterritori statement ordered by the court may be filed either in a
particulars answer defendant al service of separate or in an amended pleading, serving a copy
Filing an Filing an is a foreign summons thereof on the adverse party.
answer to answer to juridical under

62
 REMEDIAL LAW I (BRONDIAL)
Section 4. Effect of non-compliance. — If the order is
not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of the
pleading or the portions thereof to which the order was
directed or make such other order as it deems just.
Section 5. Stay of period to file responsive pleading. —
After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion,
the moving party may file his responsive pleading within
the period to which he was entitled at the time of filing
his motion, which shall not be less than five (5) days in
any event.
Section 6. Bill a part of pleading. — A bill of particulars
becomes part of the pleading for which it is intended.
Bill of particular – particularization of the allegation for
the purpose that the adverse party may be able to
respond thoroughly or correctly to the allegations in the
pleading.
Example: The complaint states that the defendant
borrowed P100,000 from the plaintiff on 3 occasions.
When was this?! Instead of filing an answer, file a
motion for bill of particulars. Particularize on what
occasions defendant borrowed money. If the motion is
granted, within 10 days from receipt of the order
granting motion for the bill of particular, the plaintiff
will now particularize. The plaintiff will say, what I
meant by 3 occasions are: on Valentine’s Day, on your
birthday, and on Christmas day.
So the defendant can answer: on Valentine’s Day, I was
not here. I was in Boracay. On my birthday, I wasn’t
here too.
If it is granted, the plaintiff has 10 days within which to
file the bill of particular.
If it is denied, the defendant only has the balance of the
period, but the period shall not be less than 5 days.
Hence, the doctrine laid down in Domingo Neypes vs CA
or the fresh day period rule does not apply in Rule 12.
The same doctrine does not apply as well in Rule 16 or
Motion to Dismiss and Rule 64 or Review of the
judgment of COA or COMELEC. These are the only
63
instances when the fresh day period rule does not
apply.
The defendant received a copy of the summons on
March 1. He has until March 16 within which to file the
answer. Instead of filing the answer, on March 2, he
filed a bill of particulars. It was denied. When should the
defendant file his answer? Within 14 days from his
receipt of the notice of the denial of the order. If you
receive it on April, then start counting 14 days in April.
Suppose instead of filing it on March 2, you file it on
March 15 (1 day before the expiration of the period to
file the answer) and it was denied. He has 5 days. If he
receives it on April 5, he still has 5 days within which to
file or up to April 10.
D. Filing and Service of Pleadings, Judgments and
other papers
Section 1. Coverage. — This Rule shall govern the filing
of all pleadings and other papers, as well as the service
thereof, except those for which a different mode of
service is prescribed.
Distinction between Filing and Service
Section 2. Filing and service, defined. — Filing is the act
of presenting the pleading or other paper to the clerk of
court.
Service is the act of providing a party with a copy of the
pleading or paper concerned. If any party has appeared
by counsel, service upon him shall be made upon his
counsel or one of them, unless service upon the party
himself is ordered by the court. Where one counsel
appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite
side.
Filing: Manner, completeness, proof
Section 3. Manner of filing. — The filing of pleadings,
appearances, motions, notices, orders, judgments and
all other papers shall be made by presenting the original
copies thereof, plainly indicated as such, personally to
the clerk of court or by sending them by registered mail.
In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second case,
 REMEDIAL LAW I (BRONDIAL)
the date of the mailing of motions, pleadings, or any
other papers or payments or deposits, as shown by the
post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing,
payment, or deposit in court. The envelope shall be
attached to the record of the case.
Service: Mode, completeness, proof
Section 4. Papers required to be filed and served. —
Every judgment, resolution, order, pleading subsequent
to the complaint, written motion, notice, appearance,
demand, offer of judgment or similar papers shall be
filed with the court, and served upon the parties
affected.
Section 5. Modes of service. — Service of pleadings
motions, notices, orders, judgments and other papers
shall be made either personally or by mail.
Section 6. Personal service. — Service of the papers
may be made by delivering personally a copy to the
party or his counsel, or by leaving it in his office with his
clerk or with a person having charge thereof. If no
person is found in his office, or his office is not known,
or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the evening,
at the party's or counsel's residence, if known, with a
person of sufficient age and discretion then residing
therein.
Section 7. Service by mail. — Service by registered mail
shall be made by depositing the copy in the post office
in a sealed envelope, plainly addressed to the party or
his counsel at his office, if known, otherwise at his
residence, if known, with postage fully prepaid, and
with instructions to the postmaster to return the mail to
the sender after ten (10) days if undelivered. If no
registry service is available in the locality of either the
senders or the addressee, service may be done by
ordinary mail.
Section 8. Substituted service. — If service of pleadings,
motions, notices, resolutions, orders and other papers
cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel
being unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure of both
64
personal service and service by mail. The service is
complete at the time of such delivery.
Section 9. Service of judgments, final orders, or
resolutions. — Judgments, final orders or resolutions
shall be served either personally or by registered mail.
When a party summoned by publication has failed to
appear in the action, judgments, final orders or
resolutions against him shall be served upon him also by
publication at the expense of the prevailing party.
Section 10. Completeness of service. — Personal
service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten
(10) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon
actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the
postmaster, whichever date is earlier.
Priorities in Modes of Service
When you serve a copy of the pleading to the adverse
party, it is preferred that you do it personally. If you
don’t, you have to state your explanation why you are
not availing of personal service. What is the
explanation? Any explanation for that matter. Why is
this so? This is new in the 1997 Rules of Court. There are
a lot of lawyers abusing such provision. Instead of
personally serving, they serve by mail to buy time.
Illustration of this abuse: The counsel of the plaintiff has
his law office at Pacific Land Building on the 44th floor.
The defendant’s counsel is on the 4th floor of the same
building. Yet they do it by mail.
Section 11. Priorities in modes of service and filing. —
Whenever practicable, the service and filing of pleadings
and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to
other modes must be accompanied by a written
explanation why the service or filing was not done
personally. A violation of this Rule may be cause to
consider the paper as not filed.
Section 14. Notice of lis pendens. — In an action
affecting the title or the right of possession of real
property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may record in
 REMEDIAL LAW I (BRONDIAL)

the office of the registry of deeds of the province in prove: (1) the time mail, proof is proof is
which the property is situated notice of the pendency of of mailing and (2) by an affidavit
the action. Said notice shall contain the names of the time of receipt**** affidavit of person
parties and the object of the action or defense, and a the person of facts
description of the property in that province affected mailing of
thereby. Only from the time of filing such notice for facts and the
record shall a purchaser, or encumbrancer of the registry
property affected thereby, be deemed to have receipt
constructive notice of the pendency of the action, and
only of its pendency against the parties designated by * When it comes to filing, only registered mail is
their real names. accepted. When it comes to service, it may be either
registered or ordinary mail. What is the rationale? First,
The notice of lis pendens hereinabove mentioned may the service may be through ordinary mail because it
be cancelled only upon order of the court, after proper comes from the residence of the party. In some parts of
showing that the notice is for the purpose of molesting the country there are no registry services. Second, with
the adverse party, or that it is not necessary to protect regard to the prescriptive period, filing can only be done
the rights of the rights of the party who caused it to be through registered mail because it is difficult to count
recorded. for the court if it is by ordinary mail. Although the rule
regarding completeness already provides as to when it
There are 2 general issues: filing and service. Under is complete.
those 2 issues, there are 3 sub-issues:
** If you mail it on March 1, when is it complete? March
Filing Service 12 (expiration of 10 days).
Modes or Personal filing Personal service
manner By registered mail Service by mail *** What if there is no stamp (as what happens in
(registered mail Registered actual practice)? A filed. The pleading A filed could no
Ordinary*
only!) longer be located by the Clerk or Court. How do you
Completeness If filed personally, it prove
If personal, it is complete uponit? Through the stamp on your own copy.
is complete upon receipt
receipt by the Clerk **** You are given a registry receipt as proof of mailing,
of Court and then you attach that to a return card as proof of
If filed by mail, it is If receipt.
by If by ordinary
complete only upon registered mail, upon
the expiration of 5 mail, it is expiration of12. Proof of filing. — The filing of a pleading or
Section
days from receipt of complete the 10paper daysshall be proved by its existence in the record of
first registry notice only the case. If it is not in the record, but is claimed to have
upon from mailing**
the been filed personally, the filing shall be proved by the
expiration of written or stamped acknowledgment of its filing by the
5 days from clerk of court on a copy of the same; if filed by
receipt of registered mail, by the registry receipt and by the
first registry affidavit of the person who did the mailing, containing
notice a full statement of the date and place of depositing the
Proof If it is personally If personal service, proofmailisinbythe post office in a sealed envelope addressed to
filed, the proof is the written admission of the theparty
court, with postage fully prepaid, and with
stamp*** instructions
served, or the official return of to the postmaster to return the mail to the
senderofafter ten (10) days if not delivered.
the server, or the affidavit
the party serving
If it is service by If service by If service The affidavit
by refers to the affidavit of the sender, not
registered mail, registered ordinarythe mail,
one who mailed. In proof of filing, it says registry

65
 REMEDIAL LAW I (BRONDIAL)
receipt “and” affidavit; in proof service, it says “or.”
Make a distinction there.
Section 13. Proof of Service. — Proof of personal
service shall consist of a written admission of the party
served, or the official return of the server, or the
affidavit of the party serving, containing a full statement
of the date, place and manner of service. If the service is
by ordinary mail, proof thereof shall consist of an
affidavit of the person mailing of facts showing
compliance with section 7 of this Rule. If service is made
by registered mail, proof shall be made by such affidavit
and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the
notice given by the postmaster to the addressee.
An SC Circular says that when you file before the SC and
the CA, you have to attach a copy of the affidavit of
service (not filing). The SC or the CA will not accept any
pleading that does not include an affidavit of service.
E. Summons
1. What is summons?
Alias summons is one which is the second or third or
fourth summons prepared.
2. Who issues, to whom addressed?
After the complaint was filed by the plaintiff, summons
was served upon the defendant. The defendant, in
reading the summons, contested it and threw it away
saying it is not signed by the judge. Is that error on the
part of the court? No, the judge never signs nor issues
the summons. It is the clerk of court that signs, issues
and serves the summons, not the judge.
Section 1. Clerk to issue summons. — Upon the filing of
the complaint and the payment of the requisite legal
fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants.
Section 2. Contents. — The summons shall be directed
to the defendant, signed by the clerk of court under seal
and contain (a) the name of the court and the names of
the parties to the action; (b) a direction that the
66
defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers
plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem if any, shall be attached to the original
and each copy of the summons.
3. Who serves?
Only three people are qualified to serve the summons:
the sheriff, deputy sheriff, or any other person
authorized by the court.
Example of a person authorized by the Rules is Section
9. When the defendant is a prisoner, to whom should it
be served? It should be served to the prisoner by the
warden. The warden is authorized by the Rule.
Can the plaintiff serve the summons to the defendant?
Only if he has been authorized by the court. He has to
ask for leave to do that and only for justifiable reasons.
Example: If after several tries, the sheriff cannot find the
whereabouts of the defendant. Only the plaintiff knows
because the defendant keeps transferring from one
residence to another. The plaintiff should move to leave
for service of summons. In actual practice, you do not
go to such lengths; you simply accompany the sheriff.
Section 3. By whom served. — The summons may be
served by the sheriff, his deputy, or other proper court
officer, or for justifiable reasons by any suitable person
authorized by the court issuing the summons.
Section 4. Return. — When the service has been
completed, the server shall, within five (5) days
therefrom, serve a copy of the return, personally or by
registered mail, to the plaintiff's counsel, and shall
return the summons to the clerk, who issued it,
accompanied by proof of service.
Section 5. Issuance of alias summons. — If a summons
is returned without being served on any or all of the
defendants, the server shall also serve a copy of the
return on the plaintiff's counsel, stating the reasons for
the failure of service, within five (5) days therefrom. In
 REMEDIAL LAW I (BRONDIAL)
such a case, or if the summons has been lost, the clerk,
on demand of the plaintiff, may issue an alias summons.
4. Kinds of summons
What are the modes of service of summons? (must be
distinguished from modes of service of pleadings)
a. service in person on the defendant (don’t say
personal service, to distinguish it from service of
pleadings)
There are 2 ways: delivering it to the defendant himself;
and if he refuses to accept it, by leaving it with him as
laid down in Valmonte vs CA.
Section 6. Service in person on defendant. —
Whenever practicable, the summons shall be served by
handling a copy thereof to the defendant in person, or,
if he refuses to receive and sign for it, by tendering it to
him.
Valmonte vs CA: Rosita Dimalanta filed a complaint for
partition of real property and accounting of rentals
against her sister Lourdes Valmonte and her husband
Alfredo Valmonte. Lourdes and Alfredo are residents of
Seattle, Washington, USA. Alfredo has a law office in
Mabini, Ermita, Manila and divides his time between the
USA and the Philippines.
Rosita’s complaint stated that summons may be served
in the Ermita address where Alfredo, as Lourdes’
spouse, holds office and where he can be found. This
was based on a letter Lourdes sent to Rosita’s lawyer
wherein she referred to her husband as the party to
whom all communications regarding the partition of the
property intended for her should be sent.
Service of summons was made upon Alfredo who was at
his office in Manila. He accepted the summons insofar
as he was concerned. He refused to accept the
summons for his wife, Lourdes, on the ground that he
was not authorized to accept the process on her behalf.
The process server left without leaving a copy of the
summons and complaint for Lourdes.
Alfredo filed his Answer with Counterclaim. Lourdes did
not file an Answer. Rosita moved to declare Lourdes in
default. Alfredo entered a special appearance in behalf
67
of his wife and opposed Rosita’s motion. The RTC
denied the motion to declare Lourdes in default. The
trial court likewise denied Rosita’s motion for
reconsideration.
Rosita file a petition for certiorari, prohibition and
mandamus with the CA. The appellate court granted the
petition and declared Lourdes in default.
SC: There was no valid service of summons upon the
petitioner Lourdes Valmonte. The rules on service of
summons apply according to whether an action is an
action in personam, in rem or quasi in rem.
In an action in personam, personal service of summons
or, if this is not possible and he cannot be personally
served, substituted service, as provided in Rule 14, §§7-
82 is essential for the acquisition by the court of
jurisdiction over the person of a defendant who does
not voluntarily submit himself to the authority of the
court. If defendant cannot be served with summons
because he is temporarily abroad, but otherwise he is a
Philippine resident, service of summons may, by leave
of court, be made by publication. Otherwise stated, a
resident defendant in an action in personam, who
cannot be personally served with summons, may be
summoned either by means of substituted service in
accordance with Rule 14, §8 or by publication as
provided in §§ 17 and 18 of the same Rule.
In all of these cases, it should be noted, defendant must
be a resident of the Philippines, otherwise an action in
personam cannot be brought because jurisdiction over
his person is essential to make a binding decision.
On the other hand, if the action is in rem or quasi in
rem, jurisdiction over the person of the defendant is not
essential for giving the court jurisdiction so long as the
court acquires jurisdiction over the res. If the defendant
is a nonresident and he is not found in the country,
summons may be served exterritorially in accordance
with Rule 14, §17.
In such cases, what gives the court jurisdiction in an
action in rem or quasi in rem is that it has jurisdiction
over the res, i.e. the personal status of the plaintiff who
is domiciled in the Philippines or the property litigated
or attached.
 REMEDIAL LAW I (BRONDIAL)
Applying the foregoing rules to the case at bar, private
respondent's action, which is for partition and
accounting under Rule 69, is in the nature of an action
quasi in rem. Such an action is essentially for the
purpose of affecting the defendant's interest in a
specific property and not to render a judgment against
him.
Service of summons on her attorney cannot be justified
under the third mode provided for by Section 17, Rule
14.
As petitioner Lourdes A. Valmonte is a nonresident who
is not found in the Philippines, service of summons on
her must be in accordance with Rule 14, §17. Such
service, to be effective outside the Philippines, must be
made either (1) by personal service; (2) by publication in
a newspaper of general circulation in such places and
for such time as the court may order, in which case a
copy of the summons and order of the court should be
sent by registered mail to the last known address of the
defendant; or (3) in any other manner which the court
may deem sufficient.
This mode of service, like the first two, must be made
outside the Philippines, such as through the Philippine
Embassy in the foreign country where the defendant
resides. Moreover, there are several reasons why the
service of summons on Atty. Alfredo D. Valmonte
cannot be considered a valid service of summons on
petitioner Lourdes A. Valmonte:
1. Service of summons on petitioner Alfredo D.
Valmonte was not made upon the order of the court as
required by Rule 14, §17 and certainly was not a mode
deemed sufficient by the court which in fact refused to
consider the service to be valid and on that basis declare
petitioner Lourdes A. Valmonte in default for her failure
to file an answer.
2. Service in the attempted manner on petitioner
was not made upon prior leave of the trial court as
required also in Rule 14, §17. As provided in §19, such
leave must be applied for by motion in writing,
supported by affidavit of the plaintiff or some person on
his behalf and setting forth the grounds for the
application.
68
3. Because there was no order granting such leave,
petitioner Lourdes A. Valmonte was not given ample
time to file her Answer which, according to the rules,
shall be not less than sixty (60) days after notice. It must
be noted that the period to file an Answer in an action
against a resident defendant differs from the period
given in an action filed against a nonresident defendant
who is not found in the Philippines. In the former, the
period is fifteen (15) days from service of summons,
while in the latter, it is at least sixty (60) days from
notice.
b. substituted service
Substituted service of summons is upon the person
residing in the residence of the defendant who must be
of age and discretion. If he cannot be found there, at
the office of the defendant, to a person in charge
therein of age and discretion.
Section 7. Substituted service. — If, for justifiable
causes, the defendant cannot be served within a
reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the
summons at the defendant's residence with some
person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant's office
or regular place of business with some competent
person in charge thereof.
Manotoc vs CA: Agapita Trajano sought the
enforcement of a foreign judgment rendered by the US
District Court of Hawaii against Ma. Imelda Manotoc
(Imee Marcos) for the wrongful death of Archimedes
Trajano committed by military intelligence in the
Philippines allegedly working for Manotoc. RTC issued
summons for Manotoc addressed at Alexandra Homes,
Pasig. It was served on a Macky dela Cruz described as a
caretaker of her unit. Manotoc failed to file her answer
and was declared in default.
Manotoc filed a motion to dismiss on the ground of lack
of jurisdiction over her person, stating that she is not a
resident of the said condo and that she does not hold
office there, and dela Cruz is not her representative or
employee. Thus no valid service was made. Further, she
states that she is a resident of Singapore.
 REMEDIAL LAW I (BRONDIAL)
RTC denied the motion and the subsequent MR.
Manotoc filed a petition for certiorari and prohibition
with the CA, that was denied. MR was also denied.
Issue: Whether there was valid substituted service.
SC: No. In actions strictly ‘in perosnam’ jurisdiction over
the person of the defendant is mandatory and can be
complied with valid service of summons. If defendant
cannot be served, for excusable reason, within a
reasonable time, substituted service can be resorted to.
It is extraordinary in character and a derogation of the
usual method of service thus rules for such must be
faithfully complied with.
The requirements of valid substituted service if there is
impossibility of prompt personal service which is 15-30
days for the sheriff are:
1) By leaving copies of summons at defendant’s
residence with a person of suitable age and discretion
residing therein or by leaving copies at the defendant’s
office or regular place of business with some competent
person in charge.
2) The sheriff must narrate in specific details how
service in person became impossible.
3) The attempt must be extraordinary and at least 3
times. The person of suitable age and discretion must be
at least 18 years old, able to read the summons written
in English, and must be with confidential relation to
defendant. A competent person in charge can be the
president or manager.
The substituted service was invalid because the sheriff
did not comply with the requirements. dela Cruz was
not a representative of Manotoc. Therefore, since there
was no valid service of summons, there was no
jurisdiction acquired.
Jose vs Boyon: Petitioners Patrick and Rafaela Jose
lodged a complaint for specific performance against
respondents Helen and Romeo Boyon to compel them
to facilitate the transfer of ownership of a parcel of land
subject of a controverted sale. Respondent judge issued
summons to the [respondents]. As per return of the
summons, substituted service was resorted to by the
process server allegedly because efforts to serve the
summons personally to the [respondents] failed.
[Petitioners] filed before the trial court an Ex-
parte Motion for Leave of Court to Effect Summons by
69
Publication. The Judge issued an Order granting the Ex-
parte Motion for Leave of Court to Effect Summons by
Publication. The judge, sans a written motion, issued an
Order declaring [respondents] in default for failure to
file their respective answers. As a consequence of the
declaration of default, [petitioners] were allowed to
submit their evidence ex-parte.
Helen , who was then residing in the United States of
America, was surprised to learn from her sister
Elizabeth , of the resolution issued by the respondent
court. [Respondents] filed an Ad Cautelam motion
questioning, among others, the validity of the service of
summons effected by the court a quo. The public
respondent issued an Order denying the said motion on
the basis of the defaulted *respondents’+ supposed loss
of standing in court. The [respondents] once again
raised the issue of jurisdiction of the trial court via a
motion for reconsideration, which was also denied. The
[petitioners] moved for the execution of
the controverted judgment which the respondent judge
ultimately granted.
Respondents filed before the CA a Petition for certiorari
under Rule 65, questioning the jurisdiction of the RTC.
CA held that RTC had no authority to issue the
questioned Resolution and Orders since it never
acquired jurisdiction over respondents because of the
invalid service of summons upon them. First, the sheriff
failed to comply with the requirements of substituted
service of summons, because he did not specify in the
Return of Summons the prior efforts he had made to
locate them and the impossibility of promptly serving
the summons upon them by personal service. Second,
the subsequent summons by publication was equally
infirm, because the Complaint was a suit for specific
performance and therefore an action in personam.
Issue: Whether the service of summons on respondents
was valid
SC: No. [P]ersonal service of summons is preferred to
substituted service. Only if the former cannot be made
promptly can the process server resort to the
latter. Moreover, the proof of service of summons must
(a) indicate the impossibility of service of summons
within a reasonable time; (b) specify the efforts exerted
to locate the defendant; and (c) state that the summons
was served upon a person of sufficient age and
 REMEDIAL LAW I (BRONDIAL)
discretion who is residing in the address, or who is in
charge of the office or regular place of business, of the
defendant. It is likewise required that the pertinent
facts proving these circumstances be stated in the proof
of service or in the officer’s return. The failure to
comply faithfully, strictly and fully with all the foregoing
requirements of substituted service renders the service
of summons ineffective.
The Return of Summons shows that no effort was
actually exerted and no positive step taken by either
the process server or petitioners to locate and serve
the summons personally on respondents. At best, the
Return merely states the alleged whereabouts of
respondents without indicating that such information
was verified from a person who had knowledge
thereof. Without specifying the details of the
attendant circumstances or of the efforts exerted to
serve the summons, a general statement that such
efforts were made will not suffice for purposes of
complying with the rules of substituted service of
summons.
Mason vs CA: Spouses Efren and Digna Mason owned 2
parcels of land. Petitioners and private respondent
Columbus Philippines Bus Corporation entered into a
lease contract, under which Columbus undertook to
construct a building worth P10,000,000 at the end of
the 3rd year of the lease. Because Columbus failed to
comply with this stipulation, the petitioners, filed a
complaint for rescission of contract with damages
against Columbus before the RTC.
Summons was served upon Columbus through a certain
Ayreen Rejalde. While the receiving copy of the
summons described Rejalde as a secretary of Columbus,
the sheriff’s return described Rejalde as a secretary to
the corporate president, duly authorized to receive legal
processes.
Columbus failed to file its answer or other responsive
pleading, hence petitioners filed a motion to declare
Columbus in default. The motion was granted and
petitioners were allowed to present evidence ex-parte.
The case was submitted for decision. RTC ruled in favor
of the plaintiffs and against Columbus. That decision
became final on May 12, 1999. The following day,
Columbus filed a motion to lift order of default, which
was opposed by petitioners. RTC ordered the parties to
70
submit their respective memoranda. However, without
waiting for the same, RTC on May 26, 1999, denied the
motion to lift order of default. Columbus filed a motion
for reconsideration, which was denied. Undaunted,
Columbus filed a manifestation and motion to lift the
writ of execution. It suffered the same fate as the
motion for reconsideration for being dilatory. The
branch sheriff was directed to proceed with the
enforcement of the decision.
Columbus appealed to the Court of Appeals, which ruled
in its favour. Columbus was not properly served with
summons, thus it cannot be faulted if it failed to file an
Answer. Section 11, Rule 14 of the 1997 requires that
service of summons upon domestic private juridical
entity shall be made through its president, managing
partner, general manager, corporate secretary,
treasurer or in-house counsel. Since service upon
Columbus was made through a certain Ayreen Rejalde,
a mere filing clerk in Columbus’ office, as evidenced by
the latter’s employment record, such service cannot be
considered valid. Petitioner filed a motion for
reconsideration, but to no avail. Hence, this petition for
review.
Issue: Whether there was valid service of summons on
private respondent.
SC: No. Petitioners contend that while Section 11, Rule
14 clearly specifies the persons authorized to receive
summons on behalf of a private juridical entity, said
provision did not abandon or render inapplicable the
substantial compliance rule. The case law applicable,
contends Columbus, is Villarosa which squarely provides
for the proper interpretation of the new rule on the
service of summons upon domestic corporation, thus:
The designation of persons or officers who are
authorized to accept summons for a domestic
corporation or partnership is now limited and more
clearly specified in Section 11, Rule 14 of the 1997 Rules
of Civil Procedure. The rule now states "general
manager" instead of only "manager"; "corporate
secretary" instead of "secretary"; and "treasurer"
instead of "cashier." The phrase "agent, or any of its
directors" is conspicuously deleted in the new rule.
Service through Ayreen Rejalde, a mere filing clerk of
private respondent and not one of those enumerated
above, is invalid.
 REMEDIAL LAW I (BRONDIAL)
We find private respondent’s submission on this issue
meritorious.
The question of whether the substantial compliance rule
is still applicable under Section 11, Rule 14 of the 1997
Rules of Civil Procedure has been settled in Villarosa
which applies squarely to the instant case. Notice to
enable the other party to be heard and to present
evidence is not a mere technicality or a trivial matter in
any administrative or judicial proceedings. The service
of summons is a vital and indispensable ingredient of
due process. We will deprive Columbus of its right to
present its defense in this multi-million peso suit, if we
disregard compliance with the rules on service of
summons.
E.B. Villarosa vs Benito: Petitioner and private
respondent executed a Deed of Sale with Development
Agreement wherein the former agreed to develop
parcels of land belonging to the latter into a housing
subdivision for the construction of low cost housing
units. Private respondent filed a Complaint for Breach of
Contract and Damages against petitioner before the RTC
allegedly for failure of the latter to comply with its
contractual obligation in that, other than a few
unfinished low cost houses, there were no substantial
developments. Summons, with the complaint, were
served upon the petitioner, through its Branch Manager
Engr. Wendell Sabulbero at the stated address at
Kolambog, Lapasan, Cagayan de Oro (CdO) City but the
Sheriff’s Return of Service stated that the summons was
duly served upon petitioner thru SALBULBERO at their
new office Villa Gonzalo, Nazareth, CdO City.
Petitioner filed a Special Appearance with Motion to
Dismiss alleging that the summons was served upon
Sabulbero, who is not one of those persons upon whom
service of summons may be made. Private respondent
filed a Motion to Declare Defendant in Default alleging
that petitioner has failed to file an Answer. Private
respondent filed an Opposition to the Motion to
Dismiss. RTC denied the Motion to Dismiss as well as the
Motion to Declare in Default, stating that since the
summons and copy of the complaint were in fact
received by the corporation through its branch
manager, there was substantial compliance with the
rule on service of summons and consequently, it validly
acquired jurisdiction over the person of the petitioner.
71
Petitioner contends that the enumeration of persons to
whom summons may be served is “restricted, limited
and exclusive” following the rule on statutory
construction expressio unios est exclusio alterius.
Issue: Whether or not the service of summons upon the
branch manager of petitioner at its branch office at
Cagayan de Oro, instead of upon the general manager
at its principal office at Davao City was proper.
SC: No. Under the new Rules, service of summons upon
an agent of the corporation is no longer authorized. The
cases cited by private respondent are therefore not in
point. The designation of persons or officers who are
authorized to accept summons for a domestic
corporation or partnership is now limited and more
clearly specified in Section 11, Rule 14. The rule now
states “general manager” instead of only “manager”;
“corporate secretary” instead of “secretary”; and
“treasurer” instead of “cashier.” The phrase “agent, or
any of its directors” is conspicuously deleted in the new
rule.
The particular revision was explained by retired SC
Justice Florenz Regalado, thus: “x x x the then Sec. 13 of
this Rule allowed service upon a defendant corporation
to ‘be made on the president, manager, secretary,
cashier, agent or any of its directors.’ The terms were
obviously ambiguous and susceptible of broad and
sometimes illogical interpretations, especially the word
‘agent’ of the corporation. The Filoil case, involving the
litigation lawyer of the corporation who precisely
appeared to challenge the validity of service of
summons but whose very appearance for that purpose
was seized upon to validate the defective service, is an
illustration of the need for this revised section with
limited scope and specific terminology. Thus the absurd
result in the Filoil case necessitated the amendment
permitting service only on the in-house counsel of the
corporation who is in effect an employee of the
corporation, as distinguished from an independent
practitioner.”
The purpose is to render it reasonably certain that the
corporation will receive prompt and proper notice in an
action against it or to insure that the summons be
served on a representative so integrated with the
corporation that such person will know what to do with
the legal papers served on him. In other words, ‘to
 REMEDIAL LAW I (BRONDIAL)
bring home to the corporation notice of the filing of the
action.’ x x x.
The liberal construction rule cannot be invoked and
utilized as a substitute for the plain legal requirements
as to the manner in which summons should be served
on a domestic corporation. x x x.”
Even under the old rule, service upon a general
manager of a firm’s branch office has been held as
improper as summons should have been served at the
firm’s principal office.
The fact that defendant filed a belated motion to
dismiss did not operate to confer jurisdiction upon its
person. There is no question that the defendant’s
voluntary appearance in the action is equivalent to
service of summons. Before, the rule was that a party
may challenge the jurisdiction of the court over his
person by making a special appearance through a
motion to dismiss and if in the same motion, the
movant raised other grounds or invoked affirmative
relief which necessarily involves the exercise of the
jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. This
doctrine has been abandoned in the case of La Naval
Drug Corporation vs. Court of Appeals, et al., which
became the basis of the adoption of a new provision in
the former Section 23, which is now Section 20 of Rule
14 of the 1997 Rules. The emplacement of this rule
clearly underscores the purpose to enforce strict
enforcement of the rules on summons. Accordingly, the
filing of a motion to dismiss, whether or not belatedly
filed by the defendant, his authorized agent or
attorney, precisely objecting to the jurisdiction of the
court over the person of the defendant can by no
means be deemed a submission to the jurisdiction of
the court.
c. extraterritorial
Section 15. Extraterritorial service. — When the
defendant does not reside and is not found in the
Philippines, and the action affects the personal status of
the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or
in which the relief demanded consists, wholly or in part,
in excluding the defendant from any interest therein, or
72
the property of the defendant has been attached within
the Philippines, service may, by leave of court, be
effected out of the Philippines by personal service as
under section 6; or by publication in a newspaper of
general circulation in such places and for such time as
the court may order, in which case a copy of the
summons and order of the court shall be sent by
registered mail to the last known address of the
defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60)
days after notice, within which the defendant must
answer. (17a)
Section 16. Residents temporarily out of the
Philippines. — When any action is commenced against a
defendant who ordinarily resides within the Philippines,
but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under
the preceding section.
i. personal
ii. by publication
iii. any mode
5. On whom served
There are specific kinds of defendants.
a. on corporations: public or private, domestic or
foreign
Section 11. Service upon domestic private juridical
entity. — When the defendant is a corporation,
partnership or association organized under the laws of
the Philippines with a juridical personality, service may
be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house
counsel.
Section 12. Service upon foreign private juridical
entities. — When the defendant is a foreign private
juridical entity which has transacted business in the
Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or,
if there be no such agent, on the government official
designated by law to that effect, or on any of its officers
or agents within the Philippines.
 REMEDIAL LAW I (BRONDIAL)
Section 13. Service upon public corporations. — When
the defendant is the Republic of the Philippines, service
may be effected on the Solicitor General; in case of a
province, city or municipality, or like public
corporations, service may be effected on its executive
head, or on such other officer or officers as the law or
the court may direct.
b. on natural persons: prisoners;
minors/incompetents; unknown; entities without
juridical personality
Section 8. Service upon entity without juridical
personality. — When persons associated in an entity
without juridical personality are sued under the name
by which they are generally or commonly known,
service may be effected upon all the defendants by
serving upon any one of them, or upon the person in
charge of the office or place of business maintained in
such name. But such service shall not bind individually
any person whose connection with the entity has, upon
due notice, been severed before the action was
brought.
Section 9. Service upon prisoners. — When the
defendant is a prisoner confined in a jail or institution,
service shall be effected upon him by the officer having
the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose.
Section 10. Service upon minors and incompetents. —
When the defendant is a minor, insane or otherwise an
incompetent, service shall be made upon him personally
and on his legal guardian if he has one, or if none his
guardian ad litem whose appointment shall be applied
for by the plaintiff. In the case of a minor, service may
also be made on his father or mother.
If the defendant is a minor, it is definitely by
representative party. To whom do you serve the
summons? Serve the summons upon the minor OR (not
AND) the parent. But if it is an incompetent, you serve it
on the incompetent AND the parent or guardian or
guardian ad litem. If it is a minor, service of summons
upon the parent is sufficient. But if it an incompetent, it
must be served on both the incompetent and the
parent/guardian/guardian ad litem.
73
Don’t apply the word incompetent here to those who
are incompetent under settlement of estate (ex.
drunkards). That’s a different matter.
Section 14. Service upon defendant whose identity or
whereabouts are unknown. — In any action where the
defendant is designated as an unknown owner, or the
like, or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service may,
by leave of court, be effected upon him by publication in
a newspaper of general circulation and in such places
and for such time as the court may order.
6. Proofs of service
Section 17. Leave of court. — Any application to the
court under this Rule for leave to effect service in any
manner for which leave of court is necessary shall be
made by motion in writing, supported by affidavit of the
plaintiff or some person on his behalf, setting forth the
grounds for the application.
Section 18. Proof of service. — The proof of service of a
summons shall be made in writing by the server and
shall set forth the manner, place, and date of service;
shall specify any papers which have been served with
the process and the name of the person who received
the same; and shall be sworn to when made by a person
other than a sheriff or his deputy.
Section 19. Proof of service by publication. — If the
service has been made by publication, service may be
proved by the affidavit of the printer, his foreman or
principal clerk, or of the editor, business or advertising
manager, to which affidavit a copy of the publication
shall be attached and by an affidavit showing the
deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed
to the defendant by registered mail to his last known
address.
F. Voluntary Appearance
Section 20. Voluntary appearance. — The defendant's
voluntary appearance in the action shall be equivalent
to service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a
voluntary appearance.
 REMEDIAL LAW I (BRONDIAL)

(i) That the claim on which the action is founded

Biglang-awa vs Phil. Trust Co: is enforceable under the provisions of the
Asean Pacific Planners vs City of Urdaneta: statute of frauds; and
De Dios vs CA:
Millenium Ind. & Com. Corp. vs Tan: (j) That a condition precedent for filing the claim
Ramos vs Ramos: has not been complied with. (1a)
Teh vs CA:
Santos vs PNOC Exp.: Principles involved in motions:
Dole Phil vs Quilala: 1. 3-day notice rule
Pascual vs Pascual: 2. 10-day setting rule

Rule 16
JUNE 17, 2014
Rule 16
Motion to dismiss
Section 1. Grounds. — Within the time for but before
filing the answer to the complaint or pleading asserting
a claim, a motion to dismiss may be made on any of the
following grounds:
(a) That the court has no jurisdiction over the
person of the defending party;
(b) That the court has no jurisdiction over the
subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to
sue;
(e) That there is another action pending
between the same parties for the same cause;
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(g) That the pleading asserting the claim states
no cause of action;
(h) That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
Kinds of motions:
1. Litigated
2. Non-litigated or oral
a. In the course of the trial, for example, a
counsel would raise his hand, and say
“Objection, your honor”, that is an oral
motion.
b. There are also certain motions that do
not require hearings. When you file a
motion before the CA or the SC, never
set that for hearing, because hearing
before the SC is not a matter of right,
but a matter of discretion.
i. The same with the CA, they do
not want parties to set
hearings. Especially now that
the CA, under the new rules,
can conduct trials, and accept
evidence.
ii. Even if the CA and SC has
original jurisdiction, you do not
set motion submitted before
them for hearing, because it is a
matter of discretion on the part
of the CA and SC.
Omnibus motion rule (Sec. 8)
Insert here
De Guzman v Ochoa
Omnibus motion in relation to motion dismiss
Facts of the case
What was the principal action? Annulment of contract
of mortgage/foreclosure

74
 REMEDIAL LAW I (BRONDIAL)
What happened? Why was there an action for
foreclosure/annulment of mortgage? Failure to pay the
loan. There are no other grounds for foreclosure. In fact,
the judgment for foreclosure does not say judgment to
sell. If the court renders a judgment to sell in a
foreclosure proceeding, it is an abuse of discretion and a
ground for certiorari because a judgment under Rule 68
must be a judgment to pay and never a judgment to sell.
The layman’s knowledge of foreclosure, when it is said
that one’s property is foreclosed, the property must be
sold right away. When a property is foreclosed, it means
that the judgment is to pay for the mortgage debt.
Instead of going to trial, they filed a motion to dismiss
on the ground that the complaint did not state a cause
of action. RTC denied the motion.
Recite grounds for a motion to dismiss. See Rule.
They then filed a second motion to dismiss on the
ground that the certification against forum shopping
attached to the complaint was not executed by the
principal parties (plaintiffs) in violation of Sec. 5, Rule 7,
1997 Rules of Civil Procedure, rendering the complaint
fatally defective and thus dismissible.
They went up to the CA on certiorari. Why certiorari?
What did we study regarding the jurisdiction of the SC
particularly Sec. 5, Article VIII of the Constitution?
Regarding appellate jurisdiction? Review, revise, modify
or affirm by appeal or certiorari
When is it appeal? When it is a pure question of law, in
other words, an error of judgment
When is it certiorari? When there is error of jurisdiction
In this case, they went up on certiorari because it is an
error of jurisdiction. Because accordingly the ground
relied upon in this case is a matter of jurisdiction, it is
not just a matter of any lack of cause of action or other
grounds, but an error of jurisdiction. A motion to
dismiss may either be granted or denied. If it is denied,
the order denying it is? What kind of order?
Interlocutory order. What is an interlocutory order?
There is no finality yet as the court has still something to
do. When the court has nothing more to do, it is a final
order, and thus, the remedy is appeal. But if it is
75
interlocutory, thus the court has still something more to
do, then, the remedy is certiorari.
The second motion to dismiss was also denied because
of the omnibus motion rule. Is the omnibus motion rule
an absolute rule? No.
What are the exceptions? Only matters of jurisdiction;
Rule 9, Sec. 1
What is the doctrine derived from this case? The Court
disposed the issue on interlocutory orders, which do not
terminate a case. The general rule is that a denial of a
motion to dismiss cannot be questioned in a special civil
action.
So, what is the remedy of the party whose motion to
dismiss is denied? Take note, certiorari is not a remedy,
as a general rule, because under Rule 65, Sec. 1,
certiorari is anchored only on three grounds – lack of
jurisdiction, excess of jurisdiction, grave abuse of
discretion amounting to lack of jurisdiction – that is why
certiorari is not a remedy against an order denying a
motion to dismiss, what then is the remedy? File an
answer, go to trial, and if you lose, you have all the
remedies against a judgment – appeal. And in your
appeal, you now assign as error, the error of the court in
denying your motion to dismiss. That is why pursuant to
the SC AM 07-7-12, amendments on Rule 41, 45, 58 and
65, specifically regarding 65, it provides that when you
avail of certiorari when you should not have availed of
it, and it was found out by the court that you are simply
delaying the resolution of the case, the penalty is not
only on the party, but to the lawyer as well. Triple?
(check the AM, insert here)
When is there grave abuse of discretion? When there
are capricious and whimsical, arbitrary and despotic
actuations of the court (remember these, they go in
twos)
When you cannot establish whimsical, capricious,
arbitrary, and despotic, certiorari is out of the question.
But here, denial of a motion to dismiss therefore, even if
it is interlocutory, certiorari is not the remedy, but you
go to trial and whatever judgment, if unfavorable, you
appeal. Or other remedies under Rule 37, new trial or
reconsideration, or appeal. Remember, there are only
three remedies against a final order. But when
 REMEDIAL LAW I (BRONDIAL)
judgment has already been entered, forget about those
remedies. You are only left with two remedies, which
are petition for relief from judgment and annulment of
judgment.
Remedies:
1. Rule 16 (MTD);
2. Demurrer;
3. Rule 37 (new trial/recon)
4. Rule 40-45 (appeals)
5. After judgment has been entered, Rule 38 and
47 (petition for relief from judgment and
annulment of judgment)
Where do you find the equivalent of motion to dismiss in
criminal procedure? Motion to quash under Sec. 3, Rule
117. Read this together with Sec. 1, Rule 16. Every
ground for a motion to dismiss has its equivalent in a
motion to quash. But take note that these are two
different things. What are the distinction between a
motion to dismiss and a motion to quash?
1. MTD applies in civil cases; MTQ applies in
criminal cases
2. MTD has 10 grounds; MTQ has 9 grounds, why
is it so? What is lacking in motion to quash?
Venue. Because in criminal cases, venue is
jurisdictional, so it is not a ground anymore for
MTQ.
a. But every ground in MTD has an
equivalent in MTQ. Examples:
i. Under res judicata or that the
cause of action has been barred
by prior judgment or by the
statute of limitation = That the
accused has been previously
convicted or acquitted or the
case against him has been
dismissed without his consent;
ii. Failure to state cause of action
= That the facts charged do not
constitute an offense
iii. That plaintiff has no legal
capacity to sue = That the
officer who filed the
information has no authority to
do so
iv. Litis pendentia = duplicity of
offense filed in one information
76
v. Condition precedent = Did not
comply substantially with the
prescribed form
3. In a MTD, you seek to dismiss the complaint; In
a MTQ, you seek to quash the information.
MTD grounds, discussion; cont.
1. That the court has no jurisdiction over the
person of the defendant
a. How does the court acquire jurisdiction
over the person of the defendant?
i. Valid service of summons;
ii. Voluntary appearance
2. That the court has no jurisdiction over the
subject matter of the case
a. What is the principle?
i. Jurisdiction is conferred by law
except the jurisdiction of the
Supreme Court, which is
conferred by the Constitution.
3. That venue is improperly laid
a. Under Rule 4
4. That the plaintiff has no legal capacity to sue
a. Under Rule 3 on parties
5. Litis pendentia
a. One suit for a single cause of action and
joinder of causes of action
6. That cause of action had been barred by prior
judgment or the statute of limitations
a. Sec. 47, Rule 39
7. Unenforceability of claim pursuant to the
statute of frauds
a. Civil in nature
8. That the claim has been paid, waived,
abandoned, or otherwise extinguished
a. Obligations and contracts
b. When is an obligation extinguished?
i. Payment, loss of the thing due,
merger, subrogation, novation,
etc.
c. See affirmative defenses.
9. Condition precedent
a. Katarungang Pambaranggay Law
i. General Rule: All cases must
pass through the barangay
conciliation proceedings;
otherwise it is a ground for
dismissal on the ground of
prematurity.
 REMEDIAL LAW I (BRONDIAL)
1. It is no longer
jurisdictional. It is just a
matter of prematurity.
The Court will merely
archive the case until
condition precedent has
been complied with.
ii. Exceptions:
1. An action wherein one
of the parties is a
government
instrumentality
2. When a public officer is
involved and the action
involved his office
3. Where one of the
parties is a corporation
4. If the parties reside in
different cities or
municipalities except
when they voluntarily
submit themselves in
the proper forum and
the barangay in which
they reside is adjacent
to each other. So even if
the parties reside in
different cities or
municipalities but they
reside in a barangay
who is adjacent to each
other there is still a
need for barangay
conciliation.
5. When parties avail any
one of the provisional
remedies
a. What are these
provisional
remedies?
AIRRS
i. Prelimi
nary
Attach
ment
ii. Prelimi
nary
Injuncti
on
77
iii. Receive
rship
iv. Replevi
n
v. Support
penden
te lite
6. When party is arrested
pursuant to Sec. 5, Rule
113 or warrantless
arrest
b. When the case is between or among
members of the immediate family
i. Immediate family = up to 2nd
degree of consanguinity
1. Vertical line = no
limitation
2. Horizontal line = up to
brothers and sisters
ii. However under Rule 3, we
spoke of parties - spouses
1. In-laws are included,
because they have to be
impleaded as spouse/s.
c. Exhaustion of administrative remedies
i. Exercise of primary jurisdiction
If a MTD is granted, what happens? The case is
dismissed. What is the remedy? Appeal, because an
order denying a motion to dismiss is a final order – court
has nothing left to do. If denied, what is your remedy?
File an answer. When? Within the remaining balance of
days for the period of filing an answer from receipt of
notice of denial, which must not be less than 5 days.
When do we not apply the Neypes? Doctrine (fresh
period rule)? Rules 12, 16 and 64. Example: If summons
was duly served on 1st of the month, the defendant has
until the 16th of the month to file an answer; however,
he filed a MTD on the 5th day. How many days were
consumed? 4 days. What is the balance of the period?
11 days. MTD was denied, when should the defendant
file an answer? Within 11 days from receipt of the
notice of the denial of the motion to dismiss (only the
balance of the period but not less than 5 days).
Rule 17
Dismissal of actions
Sec.1 notice of dismissal by plaintiff
 REMEDIAL LAW I (BRONDIAL)
Section 1. Dismissal upon notice by plaintiff. — A
complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon
such notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the
same claim. (1a)
Who files the notice? Plaintiff. What are the grounds?
No grounds. Nobody will be prejudiced except the
plaintiff. There is, however, a sanction to the plaintiff,
which is the two-dismissal rule. What is the two-
dismissal rule? A situation where the plaintiff has twice
dismissed a complaint without order of the court, and in
such event, the dismissal will be a judgment on the
merits.
Example: A v B. A, plaintiff, files notice of dismissal on
the ground improper venue. The court dismissed the
case. He again filed another claim against B. But then he
found out that B is a (close friend of his friend), so he
drops the case again. Will the two-dismissal rule apply?
Yes. However, if one of the grounds is a jurisdictional
matter, the two-dismissal rule will not apply. For
instance, (Patmig’s example), one of the grounds for
filing a notice of dismissal is on the ground of lack of
jurisdiction over the subject matter.
What is the requirement for the notice of dismissal to
become effective? There must be order of confirmation
from the court. It is the order issued by the court
pursuant to Sec. 1, Rule 17 for the purpose of effecting
the notice of dismissal. Without such order, the notice
does not become effective. Do not confuse this with
another order of confirmation (of sale) under Rule 68
for the purpose of cutting the equity of redemption.
Sec. 2 motion by plaintiff
Section 2. Dismissal upon motion of plaintiff. — Except
as provided in the preceding section, a complaint shall
not be dismissed at the plaintiff's instance save upon
approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the service
upon him of the plaintiffs motion for dismissal, the
78
dismissal shall be limited to the complaint. The dismissal
shall be without prejudice to the right of the defendant
to prosecute his counterclaim in a separate action
unless within fifteen (15) days from notice of the motion
he manifests his preference to have his counterclaim
resolved in the same action. Unless otherwise specified
in the order, a dismissal under this paragraph shall be
without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court. (2a)
A motion, not a notice, filed by the plaintiff on any
ground. There is again a sanction if he filed the motion
when answer has already been filed and served upon
him, which includes a counterclaim. What is the effect?
The counterclaim will not be dismissed. The dismissal is
limited to the original complaint. Why? Because there is
already prejudice on the part of the defendant, i.e.
acquired services of counsel, paid acceptance fee, etc.
What happens now to the counterclaim? Defendant has
two options: (1) Defendant may file a separate action;
and (2) Make a manifestation in the trial court to
continue the case as to the counterclaim. Is there any
qualification as to what kind of counterclaim? No. Does
that not go against the basic doctrine that a compulsory
counterclaim can only co-exist with a complaint; remove
the complaint; the compulsory counterclaim dies with it?
What should be the proper interpretation of this rule?
Irrespective of the kind of counterclaim, the
counterclaim will not be dismissed. Within 15 days, if
you don’t want a separate action, you manifest before
the trial court.
Sec. 3 defendant files motion/court motu propio
dismisses the case
Section 3. Dismissal due to fault of plaintiff. — If, for no
justifiable cause, the plaintiff fails to appear on the date
of the presentation of his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the
same or in a separate action. This dismissal shall have
the effect of an adjudication upon the merits, unless
otherwise declared by the court. (3a)
(8 grounds for a dismissal of a case motu propio)
 REMEDIAL LAW I (BRONDIAL)
1. Summary procedure;
2. Lack of jurisdiction (Sec.1, Rule 9)
3. Litis pendentia (Sec.1, Rule 9)
4. Res judicata (Sec.1, Rule 9)
5. Prescription (Sec.1, Rule 9)
Under this rule, there are three grounds:
1. Failure of the plaintiff to appear upon the
presentation of his evidence in chief;
2. Failure of the plaintiff to prosecute his action for
an unreasonable length of time;
3. Failure to comply with any order of the court.
Rule 18
Pre-trial
Rule 18 must be read together with Rule 118 of criminal
procedure.
What is a pre-trial? Trial before trial, LOL.
Requirements? After the last pleading has been served
and filed, it shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial. What is
that last pleading? Reply.
When pre-trial is set, what happens? Presentation of
documents and names of witnesses; marking and
identification of evidence
What don’t you find under Rule 18 that you find in Rule
118? Plea-bargaining. There is no plea-bargaining in civil
cases, in criminal cases, plea-bargaining is mandatory or
the court should at least ask whether they will plea
bargain. An application for being a state witness, is that
part of plea-bargaining? No. Because it is upon the
discretion of the prosecution to recommend, although
the final say is with the court. That is not part of plea-
bargaining because plea-bargaining is asking the other
party to accept your plea to a lower charge, e.g., murder
to homicide, and that is done during pre-trial.
Take note that when you plea bargain for the reduction
or removal of one of the accused from the charge sheet,
it must always be by leave of court.
Under Rule 18, under mandatory requirement there is
appearance of the parties and counsels. What are the
sanctions if any of the party does not appear? It
depends. If it is the plaintiff, the action will be dismissed
79
without prejudice, unless otherwise ordered by the
court or in other words, non-suited. If it is the
defendant, it shall be cause to allow plaintiff to present
his evidence ex parte. Note that there is no more
declaration here, “as in default”. But if the counsel is
not present, but the party, plaintiff or defendant, then
the rule will not apply because it is the counsel who is
not present. Unfortunately there is no sanction for
lawyers under this rule. In criminal procedure, however,
sanction is up to P20, 000 for private lawyers, and up to
P5, 000 for government lawyers.
Present rule:
Rule on national mediation and conciliation proceedings
before the Philippine Mediation and Conciliation Office
(amended Rule 18 and Rule 118); the term preliminary
conference is not limited now to summary procedure
only. Even in the pre-trial, as amended, there is
preliminary conference. That preliminary conference is
done before the branch clerk of court. Identification of
evidence, marking of evidence, stipulations and
admissions – they are all done before the branch clerk
of court. So when the plaintiff sets pre-trial on a
particular day, you go to court and 100% pre-trial will
not push through because you will be referred to
Philippine Mediation and Conciliation Office, which is
mandatory and cannot be waived. Within 30 days, you
must find ways and means to settle. And this 30-day
period is extendible to another 30 days, maximum of 60
days for mediation and conciliation. What happens if
there is settlement there? Mediator will simply draft
compromise agreement, and when parties are
amenable, they will sign it, and they give it to the court
which will render judgment on compromise that is
immediately executory. If there is no settlement before
the mediation officer, then it is brought back to the
court for preliminary conference before the branch clerk
of court. And after the branch clerk of court has
undertaken the preliminary conference, you go now to
pre-trial proper before the judge. The judge will now
have to issue a pre-trial order. The pre-trial order is
mandatory. Without a pre-trial and pre-trial order is a
ground for disciplinary action against the judge, and
pre-trial must be conducted. In criminal procedure
under Rule 121, lack of pre-trial is a ground for new
trial.
Summary:
1. Mediation and conciliation with the PMCO;
 REMEDIAL LAW I (BRONDIAL)
a. 30 days, extendible for another 30 days
2. If settled
a. Mediation officer drafts compromise
agreement;
b. Parties sign;
c. Submit to court;
d. Court issues judgment on compromise
(immediately executory).
3. If not settled
a. Case brought back to court for
preliminary conference before branch
clerk;
b. After PC before branch clerk, pre-trial
proper before the judge;
c. Judge issues pre-trial order.
Rule 19
Intervention
Anonuevo v Intestate Estate of Jalandoni
Who is Anonuevo here? What kind of a party was he?
He was the intervenor. Under Rule 19 on intervention,
what are the requirements? Must have legal interest in
the matter in litigation, or interest in the success of the
plaintiff, or interest in the success of the defendant. The
kind of pleading you are bound to file depends on
whose interest you are with – if you are with the
plaintiff, you file a complaint in intervention; if you are
with the defendant, you file an answer in intervention; if
neither, you file a complaint in intervention.
Going back to the facts, Anonuevo and siblings filed an
intervention in the intestate proceedings. What was
their claim? They claim that they have a share in the
intestate estate because their grandmother was married
to the deceased. What was their evidence? Birth
certificate. The administrator of the estate contends
that such was not sufficient because the evidence
necessary is a marriage contract, and they were able to
establish that their grandmother was married to
somebody else. The issue is do the intervenors have
interest in this case? The trial court said yes. But on
appeal with the CA, it reversed the RTC. The SC ruled
that they do not have interest, as they were not able to
establish that they were grandchildren to Jalandoni, the
deceased.
80
What was the doctrine in Yao v Perello? When can one
intervene in a case, at what point in time – you can only
intervene before the rendition of judgment. After
rendition of judgment, there is no more right to
intervene. Exception: Pinlac v CA: intervenor was the
government, in the interest of substantial justice
(intervention was already when case was on motion for
reconsideration with the Supreme Court)
Rule 20, 21, 22 = READ!
Take note of how to quash a subpoena and viatory (not
sure about this) right under Sec. 10, Rule 21.
Modes of discovery
How many modes of discovery are there?
I. Depositions pending action;
II. Depositions before action;
III. Depositions pending appeal
IV. Depositions before appeal;
V. Interrogatories to parties;
VI. Request for admission by adverse party;
VII. Production of instruments;
VIII. Production of documents
IX. Inspection of instrument;
X. Inspection of documents;
XI. Production and inspection of documents and
things;
XII. Physical examination;
XIII. Mental examination;
XIV. Physical and mental examination
The least understood of these modes of discovery is
Rule 23.
Rule 23
Depositions pending action
People v Webb
Judge Tolentino stopped the taking of depositions
because there were more than 150 documents already
for resolution or as basis for judgment. Instead the
accused wanted to take the deposition of 5 more
persons in the US. Can the Judge do that under the rules
of evidence? The SC said yes. At any time at the course
of the trial, the judge can stop the trial because the
judge may say that there is more than enough evidence.
But the more important issue is whether depositions are
allowed in criminal cases. The SC ruled NO. It is not
allowed. But some justices dissented, particularly PUNO
and DAVIDE, saying that while depositions under Rule
 REMEDIAL LAW I (BRONDIAL)

23 are not allowed in criminal cases, they have their leave of court. What is the effect upon filing and service
equivalent in criminal cases, which can be found in Sec of answer? Issues are joined. When issues are joined,
12, 13, and 15 of Rule 119. This was illustrated in Vda. why would you ask for leave of court when the
De Manguera v Risos. This case was about a private questionnaire will be limited already to the issues
complainant, who was from the Visayas, but she was involved? But if with leave of court, you may ask
confined at Makati Med, and she could not testify, so impertinent questions.
she asked for deposition taking. Was the deposition
taking allowed? Yes. But upon presentation of evidence, Before whom should the deposition be taken? Before a
it was objected to on the ground that it is not allowed in deposition officer. But distinguish whether deposition
criminal cases. The SC ruled no deposition in criminal will be taken within or outside the country. If it is
cases under Rule 23, but what should have been applied outside the country, deposition will be taken at the PH
are Sec. 12, 13 and 15 of Rule 119 or advanced embassy in that country before the consul or vice consul
testimony. or any other person authorized by the court through
commission or letters rogatory for appointment of a
Sec. 1 provides that depositions may be taken with or judicial officer to take the deposition of somebody
without leave of court. When is it without leave of abroad. If within the country, anybody authorized to
court? After answer has been served. When does it administer oath, including a notary public.
require leave of court? Before answer has been served
or after jurisdiction has been obtained over any Modes of taking a deposition:
defendant or over property which is subject of the 1. Oral examination
action. Why is it that once answer has been served, it a. Process:
must be made without leave of court, and before answer i. Give notice to all parties, to
has been served, it must be made with leave of court? deposition officer, and to
Issues are joined. When issues are joined, why would prospective deponent
you ask for leave of court when the questionnaire will ii. Notice to consist of time, place,
be limited already to the issues involved? But if with and name of deposition officer
leave of court, you may ask impertinent questions. iii. Once notified, they may or may
not attend. Parties may waive
What kind of evidence are depositions? Testimonial right to attend.
evidence. We know from evidence that testimonies iv. What happens? Like a trial =
must be taken in open court, as a rule. Deposition is the direct, cross, re-direct, re-cross
exception as it is taken outside the court. When a 1. All will be taken by
deposition is taken, whose evidence is that? It will be the stenographic notes
evidence of the party who chooses to offer it. Who v. The transcript sealed in an
offers the deposition? Any party. Take note of Sec. 7 and envelope and transferred to the
8. The fact that you cause the taking of the deposition court.
does not mean that the deposition is your evidence. It is 1. Whose evidence is
only when somebody offers it. And any party can offer that? No body’s
it. Who can cause the taking of deposition? Any party. evidence; merely forms
Whose deposition should be taken? Any party or non- part of the record of the
party, the deponent may be a party or non-party. The case; anybody can use
deposition is anybody’s evidence until a party offers it. it.
We all know that evidence is not admissible until it is 2. Written interrogatories
offered. a. Process:
i. Questions are prepared
How does one take depositions? Let’s say C wants to beforehand = direct
take the deposition of X. Will it be with leave of court or examination questions
without? When answer has been served, no need for ii. The one who prepared to send
leave of court; after answer have been served, with to all parties

81
 REMEDIAL LAW I (BRONDIAL)
iii. Parties who receive it to
prepare cross examination
questions and send it to the one
who prepared the direct
iv. Then if there is re-direct, send
again
v. Then re-cross, if the party
wishes to.
b. Why is this allowed nonetheless though
tedious?
i. Because what is encouraged is a
combination of both methods.
Sec. 4, uses of deposition
1. Any deposition may be used to impeach the
testimony of the deponent;
a. Is it not that a deposition is testimonial
evidence, why is it that you may use it
to impeach that testimony of the
deponent?
i. If the deponent happens to be a
witness also in open court, and
his testimony in his deposition
is contrary to what his
testimony in open court.
2. It may be used for any purpose
3. Instances where you may avail of deposition
under the following circumstances of par. C of
Sec. 4, Rule 23.
Deposition v judicial affidavit
GR: Affidavits are hearsay.
EX: affidavits taken in lieu of direct testimony, subject to
cross-examination, i.e., judicial affidavit
Mere submission of JA is not testimony yet. It must be
authenticated.
Rule 24
Depositions before action or pending appeal
Why is this allowed, deposition pending appeal? This is
because, at that time, appellate courts are not allowed
to accept new evidence. Right now, with more reason
that this is of great use because appellate courts are
allowed to take new evidence. Another reason is in case
of remand to the trial court. Whether you take the
deposition before the lower court or appellate court,
the deposition may come in handy in case of remand.
82
What is perpetuation of testimony or deposition before
action? This is allowed because by the time you file a
case, the person might already be dead. This is in case a
person dies before a probable case arises against him.
The taking of a deposition, is it real or personal?
Personal. What then is the venue? (trick question ni Sir
kay Mica) The rule on venue will not apply, because the
rule itself provides for the venue of the taking of the
deposition before action or pending appeal = residence
of the respondent
Rule 25
Interrogatories to parties
Is this pending action, before action or pending appeal?
This is pending action. You cannot avail of this against
non-parties, solely against parties.
Where is the sanction under this rule? Sec. 6. Failure to
serve written interrogatories. Who is being sanctioned?
The one who failed to prepare the questions/supposed
to prepare the questions. As a result/sanction, the other
party may not be compelled to testify on the matter of
the interrogatories. How would the court know or
determine whether a party should be sanctioned for
failure to serve written interrogatories? During trial,
when a witness/other party is asked a question that
should have been asked in written interrogatories.
Rule 26
Request for admission by adverse party
Who should request for admission? Any party may
request for admission. Aren’t there stipulations and
admissions during pre-trial, why would one request for
admission? This applies when the party did not wait for
the pre-trial. Does this request for admission contradict
Sec. 8, Rule 8 as regards actionable documents which
provides that when you do not specifically deny the
claim of one party as against an action document, you
are deemed to have admitted the authenticity and due
execution of the document, why would one use this? No,
there is no contradiction. Because the documents
sought to be admitted under Rule 26 are not actionable
documents. They are only relevant and material
documents, but they are not actionable. What are
 REMEDIAL LAW I (BRONDIAL)

examples of these non-actionable documents, which Note that a judgment by default can never be issued
must be sought for admission? Voluminous receipts, without being preceded by an order of default.
when such would take time to have each admitted one Exception = Sec. 3, par. c, Rule 29, when there is a
by one. refusal to comply the modes of discovery, the court may
issue a judgment by default without being preceded by
Rule 27 an order of default.
Production or inspection of documents or things
Rule 30/119
Will exhumation of a cadaver fall under this rule? Yes, Trial
because cadavers are considered things. This is very
common in criminal cases – ocular inspection. Rule 119 (more important rule)
Principal issues under Rule 119:
Rule 28 1. Time frame = Trial must be completed within a
Physical and mental examination of persons period of 180 days from the beginning or trial;
2. State witness rule;
Available in actions where it is relevant 3. Rule akin to depositions (Sec. 12, 13, 15);
4. Demurrer;
Example of relevant cases where this may be applied: 5. Reopening (Sec. 24)
1. Annulment of contract by reason of imbecility of
a contracting party; Rule 30
2. Common in paternity cases; Principal issues under Rule 30:
(1) Order of trial = not to be confused with the
Sec. 4 = waiver of privilege order of presentation of evidence;
Section 4. Waiver of privilege. — By requesting and (1) plaintiff’s evidence;
obtaining a report of the examination so ordered or by (2) defendant’s;
taking the deposition of the examiner, the party (3) … so on.
examined waives any privilege he may have in that (2) Absences
action or any other involving the same controversy, (1) When party is absent for no valid
regarding the testimony of every other person who has reason
examined or may thereafter examine him in respect of (1) There is usually a penalty, but
the same mental or physical examination. (4) not strictly imposed.
(2) They are however strict on
Under privileged communication (Sec. 24, Rule 130) = postponement
doctor and patient; A v. B. A would like to have B (3) Valid ground for postponement
examined by Dr. X; Between B and Dr. X, there is = Unavailability of evidence
privileged communication. Is that waived under this
rule? Yes. Because it is by order of the court. The results Rule 31
go to A as he was the one who requested. B is not Severance and consolidation
entitled to his own medical results.
Severance and consolidation are not opposites.
Rule 29
Refusal to comply with the modes of discovery Consolidation = consolidate cases provided there is a
common question of fact or law; commonality of
Effects of refusal to comply with modes of discovery: parties/parties-of-interest; issue of jurisdiction = bars
1. Compel to answer to the mode of discovery consolidation
2. Pay damages;
3. Cite for contempt of court; Severance = look at joinder of causes of action;
4. Arrest.
Either join the causes of action or sever them.

83
 REMEDIAL LAW I (BRONDIAL)
Example: Case no. 1 = A v B, RTC MLA, Br. 1
Case no. 2 = B v A, Br. 2
Case no. 3 = A v B and C, RTC CAL, Br.1
Case no. 4 = B v A and C, RTC QC, Br. 1
Can you consolidate them? Yes. However if there is a
case pending before, say, the MTC of Marikina, you
cannot consolidate it, as there is an issue of jurisdiction.
But venue is not a bar to consolidation. What is a bar is
the issue of jurisdiction.
Rule 32
Trial by commissioner
There are instances where trial by commissioners is
mandatory:
1. Rule 67, expropriation
a. Determination of just compensation =
done by a commissioner
2. Rule 69, Partition
a. Determination of accounting = done by
commissioner
Court is bound to appoint 3 members of the commission
with integrity and probity.
In all other instances, trial by commissioner is
discretionary on the part of the court. If there are
several accounts, or judge is not familiar with issues,
which require technical expertise, one may move for
trial by commissioner. For instance, cases involving the
Cybercrime law.
RULE 33: DEMURRER TO EVIDENCE
What is the literal meaning “to demur”? It means to
assail, to question, to impugn.
In a demurrer to evidence, what are you impugning?
You are assailing the or plaintiff’s (civil) or prosecution’s
(criminal) evidence on the ground that upon the facts
and the law, the former has shown no right of relief. The
defendant (civil) or accused (criminal) claims that the
evidence is insufficient. In other words, it does not
reach the required quantum of evidence. In criminal
cases, it is proof beyond reasonable doubt; in civil cases,
it is by preponderance.
84
What is overwhelming evidence? This is the highest
quantum of evidence. The lowest, on the other hand, is
circumstantial evidence.
In civil cases, demurrer to evidence is found under Rule
33. In criminal cases, it is found in Sec. 23, Rule 119.
When you read the demurrer in civil, don’t forget to
read the demurrer in criminal.
People v. Sumingwa: The order granting appellant’s
demurrer to evidence was a resolution of the case on
the merits, and it amounted to an acquittal. Any further
prosecution of the accused after an acquittal would
violate the proscription on double jeopardy.
Bernardo v. CA: Under the new rule on demurrer to
evidence the accused has the right to file a demurrer to
evidence after the prosecution has rested its case. If the
accused obtained prior leave of court before filing his
demurrer, he can still present evidence if his demurrer is
denied. However, if he demurs without prior leave of
court, or after his motion for leave is denied, he waives
his right to present evidence and submits the case for
decision on the basis of the evidence for the
prosecution. This power to grant leave to the accused to
file a demurrer is addressed to the sound discretion of
the trial court. The purpose is to determine whether the
accused in filing his demurrer is merely stalling the
proceedings.
Radiowealth v. Del Rosario: Applying Section 1 of the
1997 Rules of Court, the CA should have rendered
judgment on the basis of the evidence submitted by the
petitioner. Since it had sufficient evidence on record to
decide the collection suit, the appellate court shall
resolve the case and render judgment on the merits,
inasmuch as a demurrer aims to discourage prolonged
litigations. A remand for further proceedings is not
necessary because the defendant, upon order of
dismissal of the demurrer to evidence, loses his right to
present evidence.
Cabador v. People: The RTC treated petitioner’s motion
to dismiss as a demurrer to evidence and since he filed
his motion without leave of court, said court declared
him to have waived his right to present evidence in his
defense. In criminal cases, a motion to dismiss may be
filed on the ground of denial of the accused’s right to
speedy trial. This was the main thrust of Cabador’s
 REMEDIAL LAW I (BRONDIAL)

motion to dismiss. The fact is that he did not even
bother to do what is so fundamental in any demurrer. In
Enojas, Jr. v. COMELEC, the court held that to determine
whether the pleading filed is a demurrer to evidence or
a motion to dismiss, the following must be considered:
(1) the allegations in it made in good faith; (2) the stage
of the proceeding at which it is filed; and (3) the primary
objective of the party filing it. Besides, a demurrer to
evidence assumes that the prosecution has already
rested its case. Here, the prosecution filed its formal
offer of exhibits on the same day Cabador filed his
motion to dismiss. Since Cabador filed his motion to
dismiss before he could object to the prosecution’s
formal offer, before the trial court could act on the
offer, and before the prosecution could rest its case, it
could not be said that he had intended his motion to
dismiss to serve as a demurrer to evidence. In sum,
tested against the criteria laid down in Enojas, the Court
finds that petitioner Cabador filed a motion to dismiss
on the ground of violation of his right to speedy trial,
not a demurrer to evidence. He cannot be declared to
have waived his right to present evidence in his defense.
Note: There is a difference between completion of the
presentation of evidence and resting your case.
Completion does not amount to resting. There is only
rest if the other party has filed its comment/opposition
and the court has ruled on the
admissibility/inadmissibility of evidence. Demurrer
cannot be filed without offer of evidence.
How do you distinguish offer from proffer of evidence?
XXX
XVI. They are grounded on the same which is
insufficiency of evidence.
XVII. As to the time frame, it can only be filed after
the plaintiff/prosecution has rested its case.
Praenotanda: Even if it is a motion to dismiss which is a
prohibited pleading under the rules on summary
procedure, the same is not true in demurrer to
evidence. Even if it is a kind of a motion to dismiss is
NOT a prohibited pleading in summary procedure. Hun
Hyung Park v. Choi is about violation of BP 22 which is
governed by the rules on summary procedure says that
a demurrer to evidence is not a prohibited pleading. The
doctrine in that case is that, notwithstanding an
acquittal, there was an appeal separating the civil from
the criminal (a questionable doctrine according to
professor).
Differences:
(3) Even if they are grounded on the same which is
insufficiency of evidence, the quantum of evidence
differs. In civil cases, it is preponderance of evidence
while in criminal, it is proof beyond reasonable doubt.
Because of this, it is easier to avail of demurrer to
evidence in criminal cases because the quantum of
evidence is higher.
(4) In demurrer, the court may grant or deny it.
• Grant: If the court grants the demurrer in civil
cases, that amounts to dismissal of the case. In
criminal cases, if the court grants a demurrer, that
amounts to acquittal.

When is the prosecution/plaintiff considered to have
rested its case? You are only considered to have rested
your case after the court has admitted your evidence. If
you’re going to trial, the rules on evidence says that the
offer must be done orally unless the court allows you to
offer it formally or in writing. In Cabador, the offer was
in writing which is exceptional.
Summary of Demurrer to Evidence
(5)
Demurrer to evidence in civil cases is based on Rule 33.
In criminal cases, you find it in Sec. 23, Rule 119.
Similarities: A demurrer to evidence, whether it is civil
or criminal:
XV. It is a kind of a motion to dismiss.
• Denial: In civil cases, if the demurrer is denied, the
defendant presents evidence. In criminal cases, if
the demurrer is denied, you have to make a
distinction: whether the demurrer was filed with
leave of court or without leave of court. If with
leave of court, the accused presents evidence. If
without leave of court, the accused loses his right
to present evidence.
Because it is dismissal in civil cases, that is a
final order; therefore, it is appealable. Because it is
acquittal in criminal cases, therefore, it is not
appealable -- otherwise, the accused will be placed in
double jeopardy.

85
 REMEDIAL LAW I (BRONDIAL)

(6) If it is appealed by the plaintiff who ordinarily

Judgment on the Pleadings Summary Judgments
will appeal it and the appellate court reverses the
order of dismissal, the defendant loses his right to 3-day-notice before hearing 10-day-notice before hearin
present evidence. In criminal cases, this is not
applicable precisely because there is no appeal -- the basis of judgment: supportin
exception is Hun Hyung Park v. Choi. affidavits, depositions, or
admissions to recover upon
basis of judgment: pleadings
Civil Cases Criminal Cases claim, counterclaim, or cros
claim, or to obtain declarato
leave of court is not required a demurrer is filed with or relief
before filing a demurrer without leave of court
When is there judgment on the pleadings? Where an
the order of dismissal is not
answer fails to tender an issue, or otherwise admits the
if the demurrer is granted, the appealable because of the
material allegations of the adverse party’s pleading.
order of dismissal is appealable constitutional policy against
double jeopardy
Under Rule 6, when does an answer fail to tender an
the accused may adduce hisissue or otherwise admits the material allegations [of
evidence only if the demurrertheiscomplaint]? An answer fails to tender an issue when
if the demurrer is denied, the
filed with leave of court; hethe material allegations of the other party are admitted
defendant may proceed to
cannot present his evidenceorif he
not specifically denied by the pleader. Under the
present his evidence
filed the demurrer without leave material allegations of the complaint not
rules,
of court specifically denied are deemed admitted. There are two
(2) kinds of defenses under Rule 6: negative defense and
RULE 34: JUDGMENT ON THE PLEADINGS affirmative defense. A negative pregnant is admitting
what you seek to deny.
Note: Read this as against Rule 35 (Summary
Judgments). The concept of a judgment on the pleadings will not
apply when no answer is filed. It will come into
Section 1. Judgment on the pleadings. — Where an operation when an answer is served and filed but the
answer fails to tender an issue, or otherwise admits the same fails to tender an issue or admits the material
material allegations of the adverse party's pleading, the allegations of the adverse party’s pleading.
court may; on motion of that party, direct judgment on
such pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal separation, RULE 35: SUMMARY JUDGMENTS
the material facts alleged in the complaint shall always
be proved. When may one file a motion for summary judgment? A
summary judgment, also called accelerated judgment, is
Give at least three (3) distinctions between judgment proper where, upon a motion filed after the issues had
on the pleadings and summary judgment. been joined and on the basis of the pleadings and
papers filed, the court finds that there is no genuine
Judgment on the Pleadings Summary Judgmentsissue as to any material fact except as to the amount of
damages. Even if there is an issue, summary judgment
proper where, upon a motion may still be availed of provided that issue is not a
proper where an answer fails to genuine issue. PBCom answers what a genuine issue is.
filed after the issues had been
tender an issue or otherwise joined and on the basis of the
admits the material allegations of pleadings and papers filed, Phil.
thereBank of Communications v. Go: Under the Rules,
the adverse party’s pleading is no genuine issue as to anysummary judgment is appropriate when there are no
material fact genuine issues of fact which call for the presentation of
evidence in a full-blown trial. Even if on their face the

86
 REMEDIAL LAW I (BRONDIAL)
pleadings appear to raise issues, when the affidavits,
depositions and admissions show that such issues are
not genuine, then summary judgment as prescribed by
the Rules must ensue as a matter of law. The
determinative factor, therefore, in a motion for
summary judgment, is the presence or absence of a
genuine issue as to any material fact. A "genuine issue"
is an issue of fact which requires the presentation of
evidence as distinguished from a sham, fictitious,
contrived or false claim. The party who moves for
summary judgment has the burden of demonstrating
clearly the absence of any genuine issue of fact, or that
the issue posed in the complaint is patently
unsubstantial so as not to constitute a genuine issue for
trial. When the facts as pleaded by the parties are
disputed or contested, proceedings for summary
judgment cannot take the place of trial.
RULE 36: JUDGMENTS, FINAL ORDERS, AND ENTRY
THEREOF
Among the three (judgment, final order, and entry),
what is the most important? It is the entry of
judgment. The judgment spoken of is a judgment in all
kinds of cases, whether it is civil or criminal. In criminal
cases, you find that in Rule 120. You also find this in
Rule 51.
When you look at these rules, they have only one (1)
specific characteristic of a judgment which is that it
must be personally written and directly prepared by the
judge.
For cultural information: In the CA, it needs to be
unanimous. If it is not, there will be no valid judgment
so what the presiding justice will do would be to create
a special division which consists of five (5) justices and a
majority will render a valid judgment. The same goes for
the Sandiganbayan. In the SC, when there are five (5)
justices, a majority vote will suffice.
How do you distinguish several judgment from
separate judgments? A several judgment is one
rendered by a court against one or more defendants,
but not against all, leaving the action to proceed against
the others. It is proper when the liability of each party is
clearly separable and distinct from that of his co-parties,
such that the claims against each of them could have
87
been the subject of separate suits, and judgment for or
against one of them will not necessarily affect the other.
A separate judgment presupposes that there are
several claims for relief presented in a single action.
• Several Judgment: different causes of action
• Separate Judgment: different parties
Section 4. Several judgments. — In an action against
several defendants, the court may, when a several
judgment is proper, render judgment against one or
more of them, leaving the action to proceed against the
others.
Section 5. Separate judgments. — When more than one
claim for relief is presented in an action, the court, at
any stage, upon a determination of the issues material
to a particular claim and all counterclaims arising out of
the transaction or occurrence which is the subject
matter of the claim, may render a separate judgment
disposing of such claim. The judgment shall terminate
the action with respect to the claim so disposed of and
the action shall proceed as to the remaining claims. In
case a separate judgment is rendered the court by order
may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe
such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the
judgment is rendered.
What is a judgment on compromise? This is a judgment
rendered by the court on the basis of a compromise
agreement entered into between the parties to the
action. It has the effect of res judicata upon the parties.
But there will be no execution of the compromise
agreement except in compliance with a judicial
compromise. The nature of this compromise is that it is
immediately executory.
What is a judgment nunc pro tunc? This literally means
“now for then.” This is a judgment intended to enter
into the record acts which had already been done, but
which do not yet appear in the record. Its purpose is not
to supply an omitted action by the court but to enter
into the record an action previously done but which was
not reflected in the record by reason of inadvertence or
mistake. This is not really a judgment but rather, a
correction of judgment because it is either there was
some formal, clerical, or typographical error or that it
 REMEDIAL LAW I (BRONDIAL)

does not present the facts as it should have been favorable to his friend and thus affects the reckoning
presented. dates prescribed under the rules.

Conditional Judgment: A conditional judgment is one Examples:

the effectivity of which depends upon the occurrence or • Under Rule 39, when may you execute a judgment as
the non-occurrence of an event. Such a judgment is a matter of right? Sec. 1 says five (5) years from entry
generally void because of the absence of a disposition. of judgment.
• Under Rule 38, when are you supposed to file a
Judgment sin perjuicio: A judgment sin perjuicio is petition for relief under Sec. 3? Within six (6) months
traditionally understood to be a brief judgment from the date of entry.
containing only the dispositive portion, without
prejudice to the making of a more extensive discussion
of the findings of fact and law to support it. This is not
actually a final decision, should be avoided and should RULE 37: NEW TRIAL OR RECONSIDERATION
not be looked with favor.
These are two (2) of the remedies against a final
Judgment upon a confession (cognovit actionem): This judgment. Motion for new trial and reconsideration are
is a judgment rendered by the court when a party NOT MANDATORY. You can immediately go to appeal.
expressly agrees to the other party’s claim or
acknowledges the validity of the claim against him. The 1997 Rules of Court specifically distinguishes the
grounds from new trial and reconsideration.
What is the literal meaning of the entry of judgment? It
means that the judgment is recorded in the book of
NEW TRIAL RECONSIDERATION
entries. But what is important here it not the actual
(5 grounds) (3 grounds)
recording but the date of entry.
1. FAME (fraud, accident, 5. the damages awarded are
What is the date of entry? The date of finality of the mistake, excusable excessive
judgment or final order shall be deemed to be the date negligence), which ordinary
of its entry (Sec. 2, Rule 36). This is fundamental. Not prudence could not have 6. the evidence is insufficien
understanding this is fatal because entry is used in many guarded against and by reason justify the decision or fina
other provisions of the rules. Hence, while entry is the of which such aggrieved party order
actual recording of the judgment in the book of entries, has probably been impaired in
what is important is the date of entry of judgment. You his rights -- constitutes 4 7. the decision or final order
find this also in Sec. 10, Rule 51 which says that the date grounds contrary to law
when the judgment or final resolution becomes
executory shall be deemed as the date of its entry. 2. newly discovered evidence,
which he could not, with
Illustration: reasonable diligence, have
• judgment was rendered July 1 discovered and produced at
• judgment became final and executory on July 16 the trial, and which if
• clerk of court recorded the judgment July 31 presented would probably
: date of entry is July 16 alter the result

Why is this so? Because the finality of judgment cannot

be made to depend on the will of the clerk of court who Note: FAME must be qualified. If you only say FAME,
is in charge of recording said judgment in the book of your answer is incomplete. You must state the
entries. Otherwise, if the clerk of court is a friend of a qualifications (...which ordinary prudence...). But never
party litigant, he may be influenced to adjust the date answer in abbreviation (F.A.M.E.). Spell it out!

88
 REMEDIAL LAW I (BRONDIAL)
If you file a motion for new trial on the ground that the
evidence is insufficient, should it be dismissed? No. The
court may consider it as a motion for reconsideration.
If you file a motion for reconsideration on the ground
of fraud, should it be dismissed? No. The court may
consider it as a motion for new trial.
Reason: What counts is the allegation and not the title.
Jurisprudence is lenient on this matter. Before the 1997
Rules of Court, new trial and reconsideration are
anchored on the same grounds. But even now that the
grounds are distinct, an incorrect assignment does not
result in the dismissal of the case.
Mendezona v. Ozamis: Judge Durias’ testimony cannot
be considered newly discovered evidence since the facts
to be testified to were existing before and during trial.
The testimony had been in existence waiting only to be
elicited from him by questioning.
Note: Equate newly discovered evidence with
unavailability of evidence. If the evidence is available, it
is not newly discovered evidence. You did not exert
enough effort to present that.
Padilla-Rumbaua v. Rumbaua: Blunders and mistakes in
the conduct of the proceedings in the trial court as a
result of the ignorance, inexperience or incompetence
of counsel do not qualify as a ground for new trial. If
such were to be admitted as valid reasons for re-
opening cases, there would never be an end to litigation
so long as a new counsel could be employed to allege
and show that the prior counsel had not been
sufficiently diligent, experienced or learned. This will put
a premium on the willful and intentional commission of
errors by counsel, with a view to securing new trials in
the event of conviction, or an adverse decision, as in the
instant case.
Note: As a matter of exception, if the errors of lawyers
are so gross, then the court can consider a
misadministration of justice.
People v. Li Ka Kim: Appellant’s passport could have
easily been presented and produced during the trial.
Such presentation of appellant’s passport, would hardly
be material to the outcome of the case. Appellant was
positively identified by the prosecution witnesses as
89
being the perpetrator of the crime. Most importantly,
appellant even identified himself as Li Ka Kim at the trial
and not as Huang Xiao Wei, that bolsters the conclusion
that appellant deliberately concealed his true identity in
the nefarious enterprise.
What kind of fraud is referred to in a motion for new
trial? It is extrinsic fraud as distinguished from intrinsic
fraud. Fraud is deceitfulness. Extrinsic fraud is that
which is outside the proceedings, outside the course of
the trial, of which you do not have control. Intrinsic
fraud is within the proceeding. Suppose the lawyer, in
the course of the hearing, presents fraudulent
documents. That is intrinsic fraud. If you do not contest
it, you have waived your right to oppose it. Hence, it is
admitted.
• Extrinsic fraud refers to any fraudulent act of the
prevailing party in the litigation which is committed
outside the trial of the case, where the defeated party
has been prevented from presenting fully his side of
the case, by fraud or deception practiced in him by his
opponent.
• Intrinsic fraud refers to acts of a party in a litigation
during the trial, such as the use of forged instruments
or perjured testimony, which did not affect the
presentation of the case, but did prevent a fair and
just determination of the case.
Example: Pre-trial is set for July 5. The adverse counsel
calls you up and told you not to attend the pre-trial
anymore because he already filed a motion for resetting
which you have not received yet because it was sent via
registered mail. Then the next order that you found is
that the case was dismissed because you were declared
non-suited by non-appearance during the trial (you are
the plainitff).
Accident: The ground of accident has the same concept
as fraud. Any kind of an event which is beyond your
control can be used as accident.
Mistake: This refers to mistake of fact. Exceptionally, it
can be a mistake of law depending on the party. If a
party is unschooled in the rudiments of law, he can be
excused.
 REMEDIAL LAW I (BRONDIAL)
Excusable Negligence: If it requires extraordinary
diligence, that would be excusable. Conversely, if it
requires ordinary diligence, then it is not excusable. It is
already gross negligence. A failure to take the proper
steps at the proper time, not in consequence of a
party’s own carelessness, inattention, or willful
disregard of the process of the unavoidable hindrance
or accident, or on reliance on the care and vigilance of
his counsel or on promises made by the adverse party.
Analogy: If you are a young lady and you get pregnant
out of wedlock, that is excusable negligence. But if you
were impregnated the second time around, that is
already gross. :)
When do we use an affidavit of merits? An affidavit of
merit is required in a motion for new trial founded on
fraud, accident, mistake, or excusable negligence. Under
the Rules, the moving party must show that he has a
meritorious defense. The facts constituting the
movant’s good and substantial defense, which he may
prove if the petition were granted, must be shown in
the affidavit which should accompany the motion for a
new trial.
If it is newly discovered evidence, there is no need for
affidavit of merits because the rule provides that said
evidence must be attached which can either be object,
testimonial, or documentary. Under Rule 8, if the
allegation is a matter of fraud, you have to allege it with
particularity. You avail of affidavit of merits because the
nature of the fraud as it was committed will be
explained therein.
Demonstrative Evidence: If it is object evidence, you can
take a picture of it. If it is a person, you take his picture
which must be not older than six (6) months under
criminal procedures.
When is a party exempted from an affidavit of merits
notwithstanding that the ground for new trial is fraud,
etc.? When in the very motion for new trial, you already
stated what constituted fraud. Under Rule 6, you must
only allege ultimate facts.
The motion for new trial may be either granted or
denied. If it is denied, what is your remedy? An order
denying a motion for new trial (or reconsideration) is
not appealable, the remedy being an appeal from the
90
judgment or final order. (Sec. 9, Rule 37) When you
appeal from the judgment, you have to assign as an
error the denial of your motion for new trial.
Note: Effective 27 December 2007, an order denying a
motion for new trial is no longer assailable by certiorari
because of the amendment to Rule 41 by A.M. No. 07-7-
12-SC.
Estinozo v. CA: Appeal and certiorari are mutually
exclusive.
Can you file a second motion for reconsideration? No,
because all the grounds were available when you filed
the motion: insufficiency of evidence, excessive award
of damages, and decision/final order is contrary to law.
Filing a second motion for reconsideration will violate
the rule on omnibus motion rule (Sec. 8, Rule 15). Under
the “single motion” rule, a party shall not be allowed to
file a second motion for reconsideration of a judgment
or a final order.
Can you file a second motion for new trial? Yes, but
only when a ground for new trial was not existing or
available when the first motion was made.
Consequently, you can only file a second motion for
new trial on the ground of newly discovered evidence.
While a second motion for reconsideration is not
allowed, a second motion for new trial is authorized by
the Rules.
Section 5. Second motion for new trial. — A motion for
new trial shall include all grounds then available and
those not so included shall be deemed waived. A second
motion for new trial, based on a ground not existing nor
available when the first motion was made, may be filed
within the time herein provided excluding the time
during which the first motion had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
If a motion for new trial is granted, what is the effect?
When the motion for new trial is granted, you only try
matters which were questioned so that all the pieces of
evidence which have already been admitted, they
remain to be admitted.
Note: Sec. 6, Rule 37 has been amended.
 REMEDIAL LAW I (BRONDIAL)
Under Rule 10, when you amend the amended pleading,
it supersedes the original pleading. However, the
admitted allegations in the original pleading, while they
are no longer part of the record, they become
extrajudicial admissions which require offer.
When you speak of trial de novo, you set aside
everything as if nothing happened.
Take note that in the amendatory circular of the
Supreme Court (A.M. 07-7-12-SC), it deleted paragraph
Sec. 2(a) of Rule 41.
RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
The remedies against an executory judgment are as
follows:
1. Rule 38
2. Rule 47
An executory judgment is necessarily final but a final
judgment is not necessarily executory. (big circle:
executory judgment/small circle: final judgment)
True/False: Rule 38 is a petition so it must be separate
and distinct from the original case.
A: False
Why? This is merely a continuation of the case.
Mesina v. Meer: A petition for relief from judgment is
not an available remedy in the Court of Appeals. Hence,
the petition should be filed in the same case and in the
same court under the same number (?). A petition for
relief is an equitable remedy; it is not a matter of right.
So, this remedy is not available when you did not avail
of a motion for new trial or even appeal when you had
the time.
This is why the word “petition” is a misnomer. The
better term is “motion.”
Why is it called “petition” for relief? Because of the
1997 Rules of Court. Under the old rules, this was just a
motion for relief.
What are the two (2) kinds of relief?
91
1. Petition for relief from judgment, order, or other
proceedings (Sec. 1)
2. Petition for relief from denial of appeal (Sec. 2)
Section 1. Petition for relief from judgment, order, or
other proceedings. — When a judgment or final order is
entered, or any other proceeding is thereafter taken
against a party in any court through fraud, accident,
mistake, or excusable negligence, he may file a petition
in such court and in the same case praying that the
judgment, order or proceeding be set aside.
Section 2. Petition for relief from denial of appeal. —
When a judgment or final order is rendered by any court
in a case, and a party thereto, by fraud, accident,
mistake, or excusable negligence, has been prevented
from taking an appeal, he may file a petition in such
court and in the same case praying that the appeal be
given due course.
You can still avail of a petition for relief if your appeal is
denied. But you are now limited only to four (4) grounds
which are fraud, accident, mistake, excusable
negligence which ordinary prudence could not have
guarded against and by reason of which such aggrieved
party has probably been impaired in his rights.
Note: Sections 1 and 2 have the same grounds and with
the same qualifications.
Illustration: The court denied your notice of appeal
because it was filed out of time. You then file a petition
for relief from denial of appeal on the ground of fraud
XXX
As to the time frame, a petition for relief must be filed
within (a) sixty (60) days from knowledge of judgment,
order, or other proceedings to be set aside; and (b) six
(6) months from entry of such judgment, order, or other
proceeding. These two periods must concur.
Section 3. Time for filing petition; contents and
verification. — A petition provided for in either of the
preceding sections of this Rule must be verified, filed
within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set
aside, and not more than six (6) months after such
judgment or final order was entered, or such proceeding
was taken, and must be accompanied with affidavits
 REMEDIAL LAW I (BRONDIAL)
showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or
defense, as the case may be.
Note: As to date of entry, refer to Sec. 2, Rule 36.
When does a party come to know of the judgment?
Ordinarily, it is when he receives a copy of the judgment
from the court. But the 60 days under this rule does not
pertain to such but rather to the time a party came to
know of the judgment from sources other than the
receipt of the copy of the judgment.
Otherwise stated, you come to know of the judgment
upon receipt thereof and when you receive a copy of
the judgment, your remedy is not petition for relief but
rather, appeal, new trial, or reconsideration because
that is just a final judgment. This is executory judgment
and the 60-day period is counted from knowledge. It is
only when you come to know of it from other sources
other than receipt of the notice of the judgment, that is
where the 60-day period will start to operate.
Example: The date of entry will be the first point of
reference which let’s say is January 1. If you come to
know of it on June 15, you only have up to June 30. If
you come to know of it after June 30, you can no longer
file a petition for relief from judgment because the two
(2) periods must be complied with.
RULE 39: EXECUTION OF JUDGMENTS
A judgment which has no entry yet cannot be executed.
General rule: Only the trial court can execute judgment.
Exception: In the case of discretionary, it can be issued
by the appellate court.
A. Kinds of Execution
Execution or satisfaction of judgment may either be by
motion or action. Does that apply to any kind of
92
execution, whether discretionary or matter of right? No.
If execution is a matter of right, execution may be by
motion or by action. However, if execution is a matter of
right, execution can only be by motion. Execution by
action is not applicable anymore as execution by action
presupposes that there is already a final judgment.
Who is a redemptioner? Rule 39, Section 27(b) – A
creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on some
part thereof, subsequent to the lien under which the
property was sold.
The judge has no other choice but to issue the writ of
execution.
In spite the fact that the issuance of a writ of execution
is ministerial… the exercise of ministerial functions
depends upon compliance with… It is only through a
motion that a writ of execution may be issued.
a. Matter of right/ministerial (Section 1)
When it is already established that the judgment is
executory, it must be issued as a matter of right.
Section 1. Execution upon judgments or final orders. —
Execution shall issue as a matter of right, or motion,
upon a judgment or order that disposes of the action or
proceeding upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied for in
the court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the
judgment or judgments or final order or orders sought
to be enforced and of the entry thereof, with notice to
the adverse party.
The appellate court may, on motion in the same case,
when the interest of justice so requires, direct the court
of origin to issue the writ of execution.
b. Discretionary (Section 2) (or by leave of court or
execution pending appeal)
Which court has jurisdiction over discretionary
execution? It depends.
 REMEDIAL LAW I (BRONDIAL)
Once appeal is perfected, does the court lose
jurisdiction over the subject matter? No. When does the
court lose jurisdiction over the subject matter? Upon
expiration of the period to appeal, because there can be
multiple defendants and the perfection of the appeal is
only as to those who appealed. Those who did not
appeal, perfection will not apply to them. “Upon
perfection of the appeal as to the appellants.” But as to
those who did not appeal, appeal will not be perfected.
This is the basis for the discretionary execution.
Discretionary execution means there is in fact an
appeal. If there is no more appeal, it is no longer
discretionary; it is a matter of right.
What kind of jurisdiction does the trial court use?
Residual jurisdiction.
What are the requirements for discretionary execution?
(1) motion; (2) good reason; and (3) special order stating
the good reason.
Page 661 of Riano:
(1) there must be a motion filed by the prevailing party
with notice to the adverse party;
(2) there must be a hearing of the motion for
discretionary execution;
(3) the motion must be filed in the trial court while it
has jurisdiction over the case and is in possession
of either the original record or on the record on
appeal;
(4) there must be good reasons to justify the
discretionary execution; and
(5) the good reasons must be stated in a special order.
When there is execution pending appeal and the court
grants the motion for execution pending appeal, the
judgment is satisfied. What happens if on appeal, the
judgment was reversed?
Illustration: A judgment for P1,000,000 was given. The
defendant (loser, judgment obligor) appeals to the
appellate court. The judgment obligee files a motion for
execution pending appeal. The court grants the motion
for execution pending appeal. The writ of execution is
used, the sheriff uses it and satisfies the P1,000,000 of
A. What happens if the judgment is reversed?
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There are certain judgments which are immediately
executory. Name some: support, injunction,
receivership, accounting. The enumeration in the Rule is
not exclusive. For example, a judgment of compromise
is immediately executory. What is the rationale for the
immediate execution of these? Delay will be prejudicial.
Under Rule 61, even a judgment for support never
becomes final. At any point in time you can go back to
court and ask for amendment. How can it be
immediately executory? The judgment will be illusory.
This is exactly what good reason is.
What is good reason? Consists of circumstances that
would justify the execution of the judgment. Otherwise,
the same judgment would become illusory. See
Stronghold Insurance.
Stronghold Insurance vs Felix: This is a collection suit.
Execution pending appeal was not allowed because the
one who is sick is not a party to the case. Thus, the
illness of the husband has nothing to do with the case (it
doesn’t involve conjugal property). This is unlike the
case of Navarro vs Escobido-bidoooo. Second reason,
the appeal was meritorious. The subject matter subject
to the execution was P57 million and the claimed
liability of Stronghold was only P12 million. That would
be injurious, not only prejudicial. Correlate with City of
Iligan case as to summary judgment.
Although Stronghold describes what good reason is, it
does not necessarily follow that that is always the case.
Good reason must be on a case-to-case basis.
City of Iligan vs Principal Management Group (PMGI): A
MOA on a ‘turn-key’ arrangement was drawn by Mayor
Quijano with Land Bank Realty Development
Corporation (LBRDC) as General Contractor and PMGI as
Developer - Financing Manager. The project to be
undertaken was the construction of a Sports Complex
which upon completion shall be turned over to Iligan
City for acceptance and the issuance of Certificate of
Acceptance and Authority to Pay to enable LBRDC-PMGI
to call on the SLC.
The work on the project stopped due to the refusal of
some of the occupants to vacate the premises claiming
that they have not been paid their disturbance
 REMEDIAL LAW I (BRONDIAL)
compensation. By then, PMGI had already accomplished
78.27% of the contracted project equivalent to
P10,957,800.00 of the total project cost of P14,000,000.
PMGI requested from petitioner for a deductive change
order to enable it to collect the above-stated amount
based on the 78.27% accomplishment of the project.
Petitioner claimed that PMGI’s accomplishment was
only 52.89% or equivalent only to P6,958,861.59 based
on the Accomplishment Report. Petitioner refused to
pay since the mutually agreed price of P14,000,000 shall
only be paid after the completion of the project and
acceptance by it and since the project is not yet
complete, no payment can be paid. The problem on the
payment of the affected occupant, which was the cause
of the work stoppage, was accordingly brought to the
attention of the Sangguniang Panlungsod which
authorized the payment of the affected occupants in the
project site.
PMGI filed a complaint against petitioner for rescission
of the MOA and damages. After the filing of petitioner’s
Answer, a Motion for Partial Summary Judgment was
filed by PMGI which claimed that there was no genuine
issue as to the fact of the obligation of the petitioner
since it admitted the accomplishment of 52.89% or
equivalent to P6,958,861.59 of PMGI and that the
petitioner had not specifically denied under oath the
genuineness of the Letter of Credit and MOA. An
Opposition to the Motion for Partial Summary Judgment
was filed by petitioner. The trial court granted the
Motion for Partial Summary Judgment and ruled in favor
of PMGI. Petitioner’s MR was denied. Petitioner filed a
Notice of Appeal. PMGI filed a Motion for Execution
Pending Appeal which alleged that when the appeal is
clearly dilatory, order for execution upon good reasons
may be issued with the discretion of the court. The
same was granted over the opposition of the petitioner.
CA affirmed.
SC: The Order granting execution pending appeal was
proper. Executions pending appeal are governed by
Section 2 of Rule 39 of the Rules of Court. There are 3
requisites for the execution of a judgment pending
appeal:
a) a motion must be filed by the prevailing party with
notice to the adverse party;
b) there must be good reasons for execution pending
appeal; and
c) the good reasons must be stated in a special order.
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Execution pending appeal is, of course, the exception to
the general rule. Normally, execution cannot be
obtained until and unless
(a) the judgment has become final and executory;
(b) the right of appeal has been renounced or waived;
(c) the period for appeal has lapsed without an appeal
having been filed; or
(d) having been filed, the appeal has been resolved and
the records of the case have been returned to the court
of origin -- in which case, execution shall issue as a
matter of right.
On the other hand, when the period of appeal has not
yet expired, the execution of a judgment should not be
allowed except if, in the court’s discretion, there are
good reasons therefor. These reasons must be stated in
a special order, because unless these are divulged, it will
be difficult to determine on appeal whether judicial
discretion has been properly exercised by the lower
court. Good reasons consist of compelling
circumstances that justify the immediate execution of a
judgment, lest it become illusory; or the prevailing party
be unable to enjoy it after the lapse of time, considering
the tactics of the adverse party who may have no
recourse but to delay.
The good reason relied upon by both the trial and the
CA was that the partial adjudication of the case was
based on petitioner’s own admission; hence, any appeal
based on that point would be unmeritorious and merely
dilatory. Indeed, both courts ruled that an appeal by
petitioner would only serve as “a good and sufficient
reason upon which to issue execution.”
The ascertainment of good reasons for execution
pending appeal lies within the sound discretion of the
trial court, and the appellate court will not normally
disturb such finding. Intervention by the latter may be
proper, if it is shown that there has been an abuse of
discretion. Like the CA, we find no abuse of discretion in
the trial court’s grant of execution pending appeal.
Indeed, a good and sufficient reason upon which to
authorize immediate execution is when an appeal is
clearly dilatory.
Santos vs COMELEC: The execution pending appeal was
granted in this case. What was the good reason here?
This is a political issue. If there is no city official, the
 REMEDIAL LAW I (BRONDIAL)
constituents in the community will not be properly
represented.
The petitioner and respondent were mayoral candidates
in Balingoan, Misamis Oriental for the May 14, 2001
elections. Respondent was declared mayor by the board
of canvassers. Petitioner filed an election protest, and
the results were recounted. Petitioner was declared the
mayor by virtue of judgment.
Petitioner filed a Motion for Execution pending appeal.
Before the RTC could act on the motion, respondent
filed a petition for certiorari with the COMELEC, as well
as appealed the RTC’s decision to the COMELEC.
COMELEC issued a Writ of Preliminary Injunction
enjoining the RTC from acting upon the Motion for
execution by the petitioner, pending the case. The
COMELEC found the RTC did not err and upheld its
ruling. Thus it lifted the writ of preliminary injunction,
dismissed the petition by the respondent, and directed
the RTC to dispatch its judgment.
RTC granted the Motion for Execution pending appeal,
and subsequently issued a Writ of Execution upon
petitioner’s posting of a bond.
Petitioner took his oath of office. Respondent filed MR
and supplemental petition praying the RTC order be
nullified, and the grant of the writ of execution be set
aside.
The COMELEC granted the respondent’s petition and
again enjoined petitioner from exercising duties as
mayor. COMELEC issued a resolution enjoining
petitioner from assuming official functions of mayor
until final resolution of the election case pending
appeal.
SC: The RTC should have granted the Writ of Execution
upon the Motion for Execution pending appeal. It is
within the RTC’s discretion to grant the motion for
execution pending appeal. Shortness of period of term
of office, coupled with public interest and length of time
the election contest has been pending are the valid
reasons for execution of judgment pending appeal.
Here, the case has been pending for almost 1 year, and
the term of office was only for 3 years. To prolong the
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case would be to deprive the electorate of services of
their mayor.
The petition for certiorari assailed RTC’s orders for the
execution of its decision pending appeal. The grant of
execution pending appeal was well within the
discretionary powers of the RTC. In order to obtain the
annulment of said orders in a petition for certiorari, it
must first be proved that the trial court gravely abused
its discretion. He should show not merely a reversible
error committed by the RTC, but a grave abuse of
discretion amounting to lack or excess of jurisdiction.
We find that no grave abuse of discretion was
committed by the RTC. In its order granting execution
pending appeal, it held:
It is of judicial notice that for the public official elected
last May 14, 2001 elections only a short period is left.
Relative to this Court’s jurisdiction over the instant case,
the settled rule that the mere filing of the notice of
appeal does not divest the trial court of its jurisdiction
over the case and to resolve pending incidents,i.e.,
motion for execution pending appeal (Asmala vs.
COMELEC, 289 SCRA 745) need not be overemphasized.
However, the COMELEC set aside the order, saying that
shortness of term alone is not a good reason for
execution of a judgment pending appeal. We disagree.
While it was indeed held that shortness of the
remaining term of office and posting a bond are not
good reasons, we clearly stated in Fermo v. COMELEC
that: A valid exercise of the discretion to allow
execution pending appeal requires that it should be
based “upon good reasons to be stated in a special
order.” The following constitute “good reasons” and a
combination of two or more of them will suffice to grant
execution pending appeal: (1.) public interest involved
or will of the electorate; (2.) the shortness of the
remaining portion of the term of the contested office;
and (3.) the length of time that the election contest has
been pending.
The decision of the RTC was rendered on April 2, 2002,
or after almost 1 year of trial and revision of the
questioned ballots. It found petitioner as the candidate
with the plurality of votes. Respondent appealed the
said decision to the COMELEC. In the meantime, the
three-year term of the Office of the Mayor continued to
 REMEDIAL LAW I (BRONDIAL)
run. The will of the electorate, as determined by the
RTC in the election protest, had to be respected and
given meaning. The Municipality needed the services of
a mayor even while the election protest was pending,
and it had to be the candidate judicially determined to
have been chosen by the people.
Bañes vs Bañes: The wife’s motion for execution
pending appeal was not proper. This is a case of legal
separation between husband and wife. Judgment was
rendered in favor of the wife finding the husband guilty.
All the properties belonging to the conjugal property
were awarded to the wife including the 2 cars and the
conjugal home. The wife asked for execution pending
appeal. There was no good reason. The husband will be
turned into a pauper. Also, the husband filed an appeal.
Although he might not get a total reversal, perhaps the
distribution might be unfair.
RTC decided in a Civil Case, decreeing among others the
legal separation between petitioner Aida Bañez and
respondent Gabriel Bañez on the ground of the latter’s
sexual infidelity; xxx the surrender by respondent of the
use and possession of a motor vehicle and the smaller
residential house to petitioner and the common
children within 15 days from receipt of the decision.
Petitioner filed an urgent ex-parte motion to modify
said decision, while respondent filed a Notice of Appeal.
RTC granted petitioner’s urgent ex-parte motion to
modify the decision.
In another motion to modify the decision, petitioner
sought moral and exemplary damages, as well as
litigation expenses. She filed a motion for execution
pending appeal. Respondent filed a consolidated
written opposition to the 2 motions, and also prayed for
the reconsideration of the previous order.
RTC denied Aida’s motion for moral and exemplary
damages and litigation expenses but gave due course to
the execution pending appeal. A writ of execution was
issued to enforce the decision for (1) respondent to
vacate the premises of the small residential house and
for (2) respondent to surrender the use and possession
of said motor vehicle to petitioner.
96
The petitioner was ordered to post a bond of
P1,500,000 to answer for all the damages that
respondent may suffer arising from the issuance of said
writ of execution pending appeal and to further answer
for all the advances that petitioner may have received
from the Special Administrator in this case pending final
termination of this present case.
In a petition for certiorari, respondent elevated the case
to the CA. CA set aside the RTC decision. The writ of
execution and the Order granting the motion filed by
the sheriff to make symbolic delivery of the house and
motor vehicle to the administrator of the are SET ASIDE.
CA denied Aida’s motion for reconsideration. Hence, the
petition in G.R. No. 132592, filed by herein petitioner.
Petitioner manifested that she no longer questions the
CA’s decision on the vehicle because respondent
repossessed it. As to the residential house, she claimed
that being conjugal in nature, justice requires that she
and her children be allowed to occupy and enjoy the
house considering that during the entire proceedings
before RTC, she did not have the chance to occupy it.
Further, she posted a bond. For these reasons, she
asked for execution pending appeal.
Respondent denied petitioner’s allegation that she did
not have the chance to occupy the residential house. He
averred that she could have, had she chosen to.
According to him, as the inventory of the couple’s
properties showed, petitioner owned 2 houses and lots
and 2 motor vehicles in the U.S., where she is a
permanent resident. Respondent contended that there
was no compelling reason for petitioner to have the
judgment executed pending appeal.
SC: The execution of judgment pending appeal was not
justified. As held in Echaus vs. Court of Appeals,
execution pending appeal is allowed when superior
circumstances demanding urgency outweigh the
damages that may result from the issuance of the writ.
Otherwise, instead of being an instrument of solicitude
and justice, the writ may well become a tool of
oppression and inequity.
There is no superior or urgent circumstance that
outweighs the damage which respondent would suffer if
he were ordered to vacate the house. Petitioner did not
refute respondent’s allegations that she did not intend
 REMEDIAL LAW I (BRONDIAL)
to use said house, and that she has 2 other houses in
the U.S. where she is a permanent resident, while he
had none at all. Merely putting up a bond is not
sufficient reason to justify her plea for execution
pending appeal. To do so would make execution
routinary, the rule rather than the exception.
Section 2. Discretionary execution. —
(a) Execution of a judgment or final order pending
appeal. — On motion of the prevailing party with notice
to the adverse party filed in the trial court while it has
jurisdiction over the case and is in possession of either
the original record or the record on appeal, as the case
may be, at the time of the filing of such motion, said
court may, in its discretion, order execution of a
judgment or final order even before the expiration of
the period to appeal.
After the trial court has lost jurisdiction the motion for
execution pending appeal may be filed in the appellate
court.
Discretionary execution may only issue upon good
reasons to be stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments.
— A several, separate or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending appeal.
i. stay of discretionary execution (Section 3)
Section 3. Stay of discretionary execution. —
Discretionary execution issued under the preceding
section may be stayed upon approval by the proper
court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the
performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or
in part. The bond thus given may be proceeded against
on motion with notice to the surety.
ii. judgments not stayed by appeal (Section 4)
The judgments are immediately executory
receivership, accounting, compromise, injunction.
Section 4. Judgments not stayed by appeal. —
Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as
are now or may hereafter be declared to be
immediately executory, shall be enforceable after their
rendition and shall not, be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court.
On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership,
accounting, or award of support.
The stay of execution shall be upon such terms as to
bond or otherwise as may be considered proper for the
security or protection of the rights of the adverse party.
B. Modes of Execution
Section 6. Execution by motion or by independent
action. — A final and executory judgment or order may
be executed on motion within five (5) years from the
date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a
judgment may be enforced by action. The revived
judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by
action before it is barred by the statute of limitations.
When do you execute a judgment by motion? Within 5
years from the date of entry of the final judgment.
That’s how important entry is. What is the date of entry
of judgment? Date of finality of judgment. Contrary to
the literal meaning of entry of judgment, which is the
recording of the dispositive portion of the judgment in
the book of entries, but the date of entry is not the date
of recording but rather..?! Why? Otherwise, the
prescriptive period will depend on the Clerk of Court. To
avoid that possible abuse!
Within 5 years, it is a matter of right. Thereafter, it is by
independent action called revival of judgment. Aside
from section 6, there is another revival of judgment in
the Rules of Court: section 34. Distinguish them!
Section 34. Recovery of price if sale not effective; revival
in of judgment. — If the purchaser of real property sold on
execution, or his successor in interest, fails to recover
the possession thereof, or is evicted therefrom, in
consequence of irregularities in the proceedings
97
 REMEDIAL LAW I (BRONDIAL)
concerning the sale, or because the judgment has been
reversed or set aside, or because the property sold was
exempt from execution, or because a third person has
vindicated his claim to the property, he may on motion
in the same action or in a separate action recover from
the judgment obligee the price paid, with interest, or so
much thereof as has not been delivered to the judgment
obligor, or he may, on motion, have the original
judgment revived in his name for the whole price with
interest, or so much thereof as has been delivered to
the judgment obligor. The judgment so revived shall
have the same force and effect as an original judgment
would have as of the date of the revival and no more.
Who revives under Section 34? The purchaser.
If you buy a property in an auction and you paid but you
were not able to get the property for one reason or
another, let’s say there was a third party claim and the
third party claimant won, you are prejudiced. What
should you do? Go after the judgment obligee because
he got the money that was supposed to go to you. That
is the revival of judgment under Section 34.
During the period of redemption, who has the property
subject of redemption? The obligor. Suppose this
properties are being utilized and they have civil fruits
like rentals, to whom should the rentals go? To the
obligor because the purchaser is not yet the owner.
Once the title is consolidated, his rights over the
property retroacts to the time of the levy. What is the
rationale behind that retroactivity?
The levy is on January. It was only after the end of
January of the following year that the title was
consolidated. The rights of the purchaser rights to
January of the previous year. Why? Because if there are
claimants or claims against that property, within that
one year period, the purchaser has priority rights. First
in time, first in right.
Judgment for P1,000,000. January 5, 1990 is the date of
entry of judgment. Until when can you execute the
judgment by motion? January 4, 1995. From January 5,
1995 until January 4, 2000, you can only execute the
judgment by independent action called revival of
judgment. Beyond January 4, 2000, how do you execute
the original judgment for P1,000,000? You can no longer
98
execute that judgment because of prescription of
judgment.
Suppose on March 10, 1996, you revived the judgment,
you have now a revived judgment. This judgment is
totally separate and distinct from the original judgment,
because it can happen that you have partially executed
the original judgment of P1,000,000. There is no such
thing as alias writ of execution. This judgment must
again be entered. It will not be on March. Say it was
entered on April 15, 1996 (date of entry of revived
judgment), within that period, count 5 years or up to
April 14, 2001 to execute that judgment by action again.
And on and on without limit until you fully satisfy the
judgment.
1. By motion (Section 6)
2. By independent action (Section 6)
C. Manner of Execution
1. when party is dead (Section 7)
Section 7. Execution in case of death of party. — In
case of the death of a party, execution may issue or be
enforced in the following manner:
(a) In case of the death of the judgment obligee,
upon the application of his executor or administrator, or
successor in interest;
on
(b) In case of the death of the judgment obligor,
against his executor or administrator or successor in
interest, if the judgment be for the recovery of real or
personal property, or the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor,
after execution is actually levied upon any of his
property, the same may be sold for the satisfaction of
the judgment obligation, and the officer making the sale
shall account to the corresponding executor or
administrator for any surplus in his hands.
2. when judgment is for money (Section 9)
Section 9. Execution of judgments for money, how
enforced. —
(a) Immediate payment on demand. — The officer shall
 REMEDIAL LAW I (BRONDIAL)
enforce an execution of a judgment for money by
demanding from the judgment obligor the immediate
payment of the full amount stated in the writ of
execution and all lawful fees. The judgment obligor shall
pay in cash, certified bank check payable to the
judgment obligee, or any other form of payment
acceptable to the latter, the amount of the judgment
debt under proper receipt directly to the judgment
obligee or his authorized representative if present at the
time of payment. The lawful fees shall be handed under
proper receipt to the executing sheriff who shall turn
over the said amount within the same day to the clerk
of court of the court that issued the writ.
If the judgment obligee or his authorized representative
is not present to receive payment, the judgment obligor
shall deliver the aforesaid payment to the executing
sheriff. The latter shall turn over all the amounts coming
into his possession within the same day to the clerk of
court of the court that issued the writ, or if the same is
not practicable, deposit said amounts to a fiduciary
account in the nearest government depository bank of
the Regional Trial Court of the locality.
The clerk of said court shall thereafter arrange for the
remittance of the deposit to the account of the court
that issued the writ whose clerk of court shall then
deliver said payment to the judgment obligee in
satisfaction of the judgment. The excess, if any, shall be
delivered to the judgment obligor while the lawful fees
shall be retained by the clerk of court for disposition as
provided by law. In no case shall the executing sheriff
demand that any payment by check be made payable to
him.
(b) Satisfaction by levy. — If the judgment obligor
cannot pay all or part of the obligation in cash, certified
bank check or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon the
properties of the judgment obligor of every kind and
nature whatsoever which may be disposed, of for value
and not otherwise exempt from execution giving the
latter the option to immediately choose which property
or part thereof may be levied upon, sufficient to satisfy
the judgment. If the judgment obligor does not exercise
the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the
judgment.
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The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor which
has been levied upon.
When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful fees,
he must sell only so much of the personal or real
property as is sufficient to satisfy the judgment and
lawful fees.
Real property, stocks, shares, debts, credits, and other
personal property, or any interest in either real or
personal property, may be levied upon in like manner
and with like effect as under a writ of attachment.
(c) Garnishment of debts and credits. — The officer may
levy on debts due the judgment obligor and other
credits, including bank deposits, financial interests,
royalties, commissions and other personal property not
capable of manual delivery in the possession or control
of third parties. Levy shall be made by serving notice
upon the person owing such debts or having in his
possession or control such credits to which the
judgment obligor is entitled. The garnishment shall
cover only such amount as will satisfy the judgment and
all lawful fees.
The garnishee shall make a written report to the court
within five (5) days from service of the notice of
garnishment stating whether or not the judgment
obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state
how much funds or credits the garnishee holds for the
judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the judgment
obligee, shall be delivered directly to the judgment
obligee within ten (10) working days from service of
notice on said garnishee requiring such delivery, except
the lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding
deposits or credits sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the right to
indicate the garnishee or garnishees who shall be
required to deliver the amount due, otherwise, the
choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure
 REMEDIAL LAW I (BRONDIAL)
under paragraph (a) with respect to delivery of payment
to the judgment obligee.
The first way to satisfy a judgment for money is by
payment.
The sheriff has the writ of execution and goes to the
judgment obligor. Here is a writ of execution for P1
million. Obligor gets P1,000,000 from his room and pays
the sheriff. Is that valid? No.
In a judgment for money, payment is first. It must be
given to the judgment obligee. PAL vs PALEA: payment
was made to the sheriff and this was not considered
satisfaction of judgment. It must be paid to the
judgment oblige.
With more reason if it is in check. If it is paid to the
order of cash, you will not see the sheriff anymore.
What about if the judgment obligor executes a
promissory note? No, the Rule does not allow
promissory note but it (or any other form of payment)
may be allowed if the judgment obligee accepts.
Levy on execution. Distinguish this from levy on
attachment (Rule 57) and levy on foreclosure (Rule 68).
Who supervises the levy? The judgment obligor. Only in
the absence of the judgment obligor will the sheriff take
over. In actual practice, the obligor is an absentee
obligor.
Even real properties may be subject to levy. How? Go to
the Register of Deeds and have the title annotated
(lien). If the judgment to be executed is a Manila Court
judgment and you levy on properties in Baguio, do you
go to Baguio? Yes, you can levy on any property in the
Philippines.
They are now in custodia legis (in the custody of the
law). It is kept for future auction.
Garnishment of debts and credits. Garnishment is the
fastest way. The garnishee bank will immediately inform
the court the amount of deposits. The garnishee will
deliver to the court and the court will give that to the
judgment obligor.
3. when judgment is for specific act (Section 10)
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Section 10. Execution of judgments for specific act. —
(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. — If a judgment directs a party to execute
a conveyance of land or personal property, or to deliver
deeds or other documents, or to perform, any other
specific act in connection therewith, and the party fails
to comply within the time specified, the court may
direct the act to be done at the cost of the disobedient
party by some other person appointed by the court and
the act when so done shall have like effect as if done by
the party. If real or personal property is situated within
the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of
any party and vest it in others, which shall have the
force and effect of a conveyance executed in due form
of law.
(b) Sale of real or personal property. — If the judgment
be for the sale of real or personal property, to sell such
property, describing it, and apply the proceeds in
conformity with the judgment.
(c) Delivery or restitution of real property. — The officer
shall demand of the person against whom the judgment
for the delivery or restitution of real property is
rendered and all persons claiming rights under him to
peaceably vacate the property within three (3) working
days, and restore possession thereof to the judgment
obligee, otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such means
as may be reasonably necessary to retake possession,
and place the judgment obligee in possession of such
property. Any costs, damages, rents or profits awarded
by the judgment shall be satisfied in the same manner
as a judgment for money.
(d) Removal of improvements on property subject of
execution. — When the property subject of the
execution contains improvements constructed or
planted by the judgment obligor or his agent, the officer
shall not destroy, demolish or remove said
improvements except upon special order of the court,
issued upon motion of the judgment obligee after the
hearing and after the former has failed to remove the
same within a reasonable time fixed by the court.
 REMEDIAL LAW I (BRONDIAL)
(e) Delivery of personal property. — In judgment for the
delivery of personal property, the officer shall take
possession of the same and forthwith deliver it to the
party entitled thereto and satisfy any judgment for
money as therein provided.
4. when it is a special judgment (Section 11)
There are several kinds of execution: judgment for
money, judgment for delivery and special judgment.
What is a special judgment? One which only the
judgment obligor can accomplish. For other judgments,
if the obligor cannot comply, the court can assign
someone else to comply at the expense of the judgment
obligor. Delivery of property is not a special judgment. If
the obligor does not want to deliver the property, he
can ask someone to deliver it at his expense. Example: A
famous painter tasked to paint. The court can punish
him and send him to jail. Is that a harsh and
unconstitutional penalty? No, he had the keys to the jail
in his pockets. Comply, get out of jail; don’t comply,
remain in jail.
Section 11. Execution of special judgments. — When a
judgment requires the performance of any act other
than those mentioned in the two preceding sections, a
certified copy of the judgment shall be attached to the
writ of execution and shall be served by the officer upon
the party against whom the same is rendered, or upon
any other person required thereby, or by law, to obey
the same, and such party or person may be punished for
contempt if he disobeys such judgment.
D. Properties exempt from execution (Section 13)
13 items under section 13 
Spouses A and B borrow money in millions from a bank.
This is secured by the home of the spouses. They are
not able to pay. Is the family home exempt from
execution? No. Since the security is the conjugal home,
then it is no longer exempt from execution pursuant to
the last paragraph of Section 13.
Salaries and wages: wages are absolutely exempt from
execution. Salaries are not necessarily exempt (if salary
is too big, it is not exempt). You don’t deprive an
individual of living or survival.
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Section 13. Property exempt from execution. — Except
as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by
law, or the homestead in which he resides, and land
necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment obligor
may select necessarily used by him in his ordinary
occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one
hundred thousand pesos;
(f) Provisions for individual or family use sufficient for
four months;
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals,
not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his
livelihood;
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the
four months preceding the levy as are necessary for the
support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or
in any manner growing out of any life insurance;
(l) The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the Government;
(m) Properties specially exempted by law.
But no article or species of property mentioned in this
section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon.
D’Armoured Security and Investigation Agency vs
Orpia: The sheriff tried to levy on guns and
 REMEDIAL LAW I (BRONDIAL)
ammunitions of the security agency. The security
agency objected because these tools and implements
that the security guards use are exempt from execution
because these are used in their livelihood. SC: Tools and
implements referred to are the tools and implements of
a working man, not of corporate entities. You don’t
deprive a working man of his living. Corporations don’t
have tools and implements.
Respondents, who were employed as security guards by
petitioner, and assigned to Fortune Tobacco, Inc., filed
with the Labor Arbiter a complaint for illegal dismissal
and various monetary claims against petitioner and
Fortune Tobacco. LA rendered a Decision stating that all
the respondents except Antonio Cabangon Chua are
entitled to P1,077,124.29 for underpayment, overtime
pay, legal holiday pay, service incentive leave pay, 13th
month pay, illegal deduction and refund of firearms
bond.
From the said Decision, Fortune Tobacco interposed an
appeal to the NLRC. Petitioner did not appeal. NLRC
dismissed the complaint against Fortune Tobacco. This
Decision became final and executory. Thus, the award
specified in the Decision of the Arbiter became the sole
liability of petitioner.
Upon respondents’ motion, the Arbiter issued a writ of
execution. The sheriff served a writ of garnishment
upon the Chief Accountant of Foremost Farms, Inc., a
corporation with whom petitioner has an existing
services agreement. Thus, petitioner’s receivables with
Foremost were garnished.
Petitioner filed with the NLRC a “Motion to
Quash/Recall Writ of Execution and Garnishment”
which was opposed by respondents. The Arbiter issued
an Order denying the motion and directing the sheriff to
release the garnished sum of money to respondents pro
rata. Petitioner’s MR was denied, hence, it interposed
an appeal to the NLRC. The NLRC dismissed the appeal
for petitioner’s failure to post a bond within the
reglementary period. Its MR was denied. Petitioner filed
with the CA a petition for certiorari and prohibition with
prayer for issuance of a writ of preliminary injunction.
CA dismissed the petition. Hence, this petition for
review on certiorari.
102
SC: The garnished amount is not exempt from
execution.
Held:
No. The Rule clearly enumerates what properties are
exempt from execution. It is apparent that the
exemption pertains only to natural persons and not to
juridical entities. CA correctly ruled that petitioner,
being a corporate entity, does not fall within the
exemption, thus:
Section 13 of Rule 39 of the Rules of Court is plain and
clear on what properties are exempt from execution.
Section 13 (i) of the Rules pertinently reads:
‘SECTION 13. Property exempt from execution. – Except
as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:
xxx xxx xxx
(i) So much of the salaries, wages or earnings of the
judgment obligor for his personal services within the
four months preceding the levy as are necessary for the
support of his family.’
The exemption under this procedural rule should be
read in conjunction with the Civil Code, the substantive
law which proscribes the execution of employee’s
wages, thus: ‘ART. 1708. The laborer’s wage shall not be
subject to execution or attachment, except for debts
incurred for food, shelter, clothing and medical
attendance.’
Obviously, the exemption under Rule 39 of the Rules of
Court and Article 1708 of the New Civil Code is meant to
favor only laboring men or women whose works are
manual. Persons belonging to this class usually look to
the reward of a day’s labor for immediate or present
support, and such persons are more in need of the
exemption than any other [Gaa vs. Court of Appeals].
In this context, exemptions under this rule are confined
only to natural persons and not to juridical entities such
as petitioner. Thus, the rule speaks of salaries, wages
and earning from the ‘personal services’ rendered by
the judgment obligor. The rule further requires that
such earnings be intended for the support of the
judgment debtor’s family.
 REMEDIAL LAW I (BRONDIAL)
Necessarily, petitioner which is a corporate entity, does
not fall under the exemption. If at all, the exemption
refers to petitioner’s individual employees and not to
petitioner as a corporation.
x x x. Parenthetically, in a parallel case where a security
agency claimed that the guns it gives to its guards are
tools and implements exempt from execution, the SC
ruled that the exemption pertains only to natural and
not to juridical persons, thus:
‘However, it would appear that the exemption
contemplated by the provision involved is personal,
available only to a natural person, such as a dentist’s
dental chair and electric fan (Belen v. de Leon). As
pointed out by the Solicitor General, if properties used
in business are exempt from execution, there can hardly
be an instance when a judgment claim can be enforced
against the business entity’ *Pentagon Security and
Investigation Agency vs. Jimenez].
It stands to reason that only natural persons whose
salaries, wages and earnings are indispensable for his
own and that of his family’s support are exempted
under Section 13 (i) of Rule 39 of the Rules of Court.
E. Third Party Claim (Section 16)
Rule 39, Section 16. Proceedings where property
claimed by third person. — If the property levied on is
claimed by any person other than the judgment obligor
or his agent, and such person makes an affidavit of his
title thereto or right to the possession thereof, stating
the grounds of such right or title, and serves the same
upon the officer making the levy and copy thereof,
stating the grounds of such right or tittle, and a serves
the same upon the officer making the levy and a copy
thereof upon the judgment obligee, the officer shall not
be bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond approved
by the court to indemnity the third-party claimant in a
sum not less than the value of the property levied on. In
case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution.
No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
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The officer shall not be liable for damages for the taking
or keeping of the property, to any third-party claimant if
such bond is filed. Nothing herein contained shall
prevent such claimant or any third person from
vindicating his claim to the property in a separate
action, or prevent the judgment obligee from claiming
damages in the same or a separate action against a
third-party claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff or levying officer is sued
for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of such funds
as may be appropriated for the purpose.
Rule 57, Section 14. Proceedings where property
claimed by third person. — If the property attached is
claimed by any person other than the party against
whom attachment had been issued or his agent, and
such person makes an affidavit of his title thereto, or
right to the possession thereof, stating the grounds of
such right or title, and serves such affidavit upon the
sheriff while the latter has possession of the attached
property, and a copy thereof upon the attaching party,
the sheriff shall not be bound to keep the property
under attachment, unless the attaching party or his
agent, on demand of the sheriff, shall file a bond
approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property
levied upon. In case of disagreement as to such value,
the same shall be decided by the court issuing the writ
of attachment. No claim for damages for the taking or
keeping of the property may be enforced against the
bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing of
the bond.
The sheriff shall not be liable for damages for the taking
or keeping of such property to any such third-party
claimant, if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property, or
prevent the attaching party from claiming damages
 REMEDIAL LAW I (BRONDIAL)
against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages as
a result of the attachment, he shall be represented by
the Solicitor General, and if held liable therefor, the
actual damages adjudged by the court shall be paid by
the National Treasurer out of the funds to be
appropriated for the purpose.
Rule 60, Section 7. Proceedings where property claimed
by third person. — If the property taken is claimed by
any person other than the party against whom the writ
of replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to
the possession thereof, stating the grounds therefor,
and serves such affidavit upon the sheriff while the
latter has possession of the property and a copy thereof
upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the
applicant unless the applicant or his agent, on demand
of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less
than the value of the property under replevin as
provided in section 2 hereof. In case of disagreement as
to such value, the court shall determine the same. No
claim for damages for the taking or keeping, of the
property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking
or keeping of such property, to any such third-party
claimant if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property, or
prevent the applicant from claiming damages against a
third-party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages as
a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefor, the actual
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damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated
for the purpose.
Section 16 of Rule 39 (execution), Section 14 of Rule 57
(attachment) and Section 7 of Rule 60 (replevin) – same
formulation
How do you distinguish a third party claim from a third
party complaint (under Rule 6; kinds of pleadings)?
Illustrate a third party claim: The property of a judgment
obligor has already been levied and has been taken in
actual custody by the sheriff. X who is a 3rd party files an
affidavit of 3rd party claim gives it to the sheriff. Sheriff
gives it to the judgment obligee who will subsequently
file a bond.
A vs B. Judgment was rendered in favor of A. A could
not pay, so sheriff levied on the property of B. The
properties of B were taken in legal custody by the
sheriff. X, not a party to the case, executes an affidavit,
which is his third party claim. X will give the affidavit to
the sheriff. The sheriff will give the affidavit of third
party claim to A. It is not the third party claimant that
posts the bond. Upon receipt of the third party claim,
the judgment obligee, he will post the bond. This holds
true in Rule 57 (attaching creditor) as well as in Rule 60
(applicant).
The judgment obligee posts a bond equivalent to the
value of the property. What is that bond for?
What happens if the judgment obligee does not post a
bond? The sheriff will deliver the property to the third
party claimant.
It has the same provision in attachment and replevin.
More so in replevin where the sale of personal property
is quickly processed.
If the judgment obligee posts a bond equivalent to the
value of the property, subject of the third party claim,
the sheriff keeps the property for auction sale.
What is the remedy of the judgment obligee against a
frivolous third party claim? File a claim for damages in
the same action or in a separate action.
 REMEDIAL LAW I (BRONDIAL)
When should the sheriff auction the property? Between
the hours of 9 in the morning up to 2 in the afternoon.
Where should it be? Where the properties are located.
As to personal properties, the properties where they
may be found.
During auction, who may purchase the property?
Anybody; that’s open to the public. May the judgment
obligee be the purchaser? Yes, that is usually the case.
How much does he have to pay? If he bids less than the
judgment debt, he does not have to pay. If he bids more
than the judgment debt, he has to pay.
Exception: the purchaser will have to pay even if he bids
within the judgment debt when there is a third party
claim. Why? A case may crop up between the third
party claimant (saying the property to be auctioned is
his) and judgment obligee. If that happens and the third
party claimant wins, the judgment obligor will have to
pay twice. That’s not fair!
F. Execution Sale (Sections 17-26)
When the auction begins, there must first be a notice
under Section 15. The 2 other requirements are posting
and publication.
Section 15. Notice of sale of property on execution. —
Before the sale of property on execution, notice thereof
must be given as follows:
(a) In case of perishable property, by posting
written notice of the time and place of the sale in three
(3) public places, preferably in conspicuous areas of the
municipal or city hall, post office and public market in
the municipality or city where the sale is to take place,
for such time as may be reasonable, considering the
character and condition of the property;
(b) In case of other personal property, by posting a
similar notice in the three (3) public places above-
mentioned for not less than five (5) days;
(c) In case of real property, by posting for twenty
(20) days in the three (3) public places abovementioned
a similar notice particularly describing the property and
stating where the property is to be sold, and if the
assessed value of the property exceeds fifty thousand
(P50,000.00) pesos, by publishing a copy of the notice
105
once a week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in English,
Filipino, or any major regional language published,
edited and circulated or, in the absence thereof, having
general circulation in the province or city;
(d) In all cases, written notice of the sale shall be
given to the judgment obligor, at least three (3) days
before the sale, except as provided in paragraph (a)
hereof where notice shall be given the same manner as
personal service of pleadings and other papers as
provided by section 6 of Rule 13.
The notice shall specify the place, date and exact time of
the sale which should not be earlier than nine o'clock in
the morning and not later than two o'clock in the
afternoon. The place of the sale may be agreed upon by
the parties. In the absence of such agreement, the sale
of the property or personal property not capable of
manual delivery shall be held in the office of the clerk of
court of the Regional Trial Court or the Municipal Trial
Court which issued the writ of or which was designated
by the appellate court. In the case of personal property
capable of manual delivery, the sale shall be held in the
place where the property is located.
Notice is an absolute requirement.
Posting is discretionary as to the period.
Publication is necessary only in cases of real property
where the fair market value is at least P50,000. It must
be published once a week for 2 consecutive weeks in a
newspaper of general circulation.
What is a newspaper of general circulation? According
to Pinlac vs CA, (1) there must be fixed paying
subscribers; (2) issuing at least 500 copies; and (3) must
be published regularly.
Under Rule 103 and 108, as to change of name and
correction of entries, the requirement is newspaper of
national circulation.
Section 17. Penalty for selling without notice, or
removing or defacing notice. — An officer selling
without the notice prescribed by section 15 of this Rule
shall be liable to pay punitive damages in the amount of
five thousand (P5,000.00) pesos to any person injured
 REMEDIAL LAW I (BRONDIAL)
thereby, in addition to his actual damages, both to be
recovered by motion in the same action; and a person
willfully removing or defacing the notice posted, if done
before the sale, or before the satisfaction of the
judgment if it be satisfied before the sale, shall be liable
to pay five thousand (P5,000.00) pesos to any person
injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action.
Section 18. No sale if judgment and costs paid. — At any
time before the sale of property on execution, the
judgment obligor may prevent the sale by paying the
amount required by the execution and the costs that
have been incurred therein.
Section 19. How property sold on execution; who may
direct manner and order of sale. — All sales of property
under execution must be made at public auction, to the
highest bidder, to start at the exact time fixed in the
notice. After sufficient property has been sold to satisfy
the execution, no more shall be sold and any excess
property or proceeds of the sale shall be promptly
delivered to the judgment obligor or his authorized
representative, unless otherwise directed by the
judgment or order of the court. When the sale is of real
property, consisting of several known lots, they must be
sold separately; or, when a portion of such real property
is claimed by a third person, he may require it to be sold
separately. When the sale is of personal property
capable of manual delivery, it must be sold within view
of those attending the same and in such parcels as are
likely to bring the highest price. The judgment obligor, if
present at the sale, may direct the order in which
property, real or personal shall be sold, when such
property consists of several known lots or parcels which
can be sold to advantage separately. Neither the officer
conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or
indirectly in any purchase at such sale.
Section 20. Refusal of purchaser to pay. — If a purchaser
refuses to pay the amount bid by him for property
struck off to him at a sale under execution, the officer
may again sell the property to the highest bidder and
shall not be responsible for any loss occasioned thereby;
but the court may order the refusing purchaser to pay
into the court the amount of such loss, with costs, and
may punish him for contempt if he disobeys the order.
The amount of such payment shall be for the benefit of
106
the person entitled to the proceeds of the execution,
unless the execution has been fully satisfied, in which
event such proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter reject any
subsequent bid of such purchaser who refuses to pay.
Section 21. Judgment obligee as purchaser. — When the
purchaser is the judgment obligee, and no third-party
claim has been filed, he need not pay the amount of the
bid if it does not exceed the amount of his judgment. If
it does, he shall pay only the excess.
Section 22. Adjournment of sale. — By written consent
of the judgment obligor and obligee, or their duly
authorized representatives, the officer may adjourn the
sale to any date and time agreed upon by them.
Without such agreement, he may adjourn the sale from
day to day if it becomes necessary to do so for lack of
time to complete the sale on the day fixed in the notice
or the day to which it was adjourned.
Section 23. Conveyance to purchaser of personal
property capable of manual delivery. — When the
purchaser of any personal property, capable of manual
delivery, pays the purchase price, the officer making the
sale must deliver the property to the purchaser and, if
desired, execute and deliver to him a certificate of sale.
The sale conveys to the purchaser all the rights which
the judgment obligor had in such property as of the
date of the levy on execution or preliminary
attachment.
Section 24. Conveyance to purchaser of personal
property not capable of manual delivery. — When the
purchaser of any personal property, not capable of
manual delivery, pays the purchase price, the officer
making the sale must execute and deliver to the
purchaser a certificate of sale. Such certificate conveys
to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy
on execution or preliminary attachment.
Section 25. Conveyance of real property; certificate
thereof given to purchaser and filed with registry of
deeds. — Upon a sale of real property, the officer must
give to the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
 REMEDIAL LAW I (BRONDIAL)
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one
(1) year from the date of the registration of the
certificate of sale.
Such certificate must be registered in the registry of
deeds of the place where the property is situated.
Section 26. Certificate of sale where property claimed by
third person. — When a property sold by virtue of a writ
of execution has been claimed by a third person, the
certificate of sale to be issued by the sheriff pursuant to
sections 23, 24 and 25 of this Rule shall make express
mention of the existence of such third-party claim.
G. Redemption
Here, the properties are already sold to the public.
When does the purchaser of the property become the
owner of such property auctioned? As of the time of the
levy. If it was levied in October and the sale is on
December, he became the owner of the property as of
October. Redemption only applies to real property, not
to personal property.
That does not hold true in case of real properties. If real
properties are the subject of an auction, the purchaser
only becomes the owner of the property after
consolidation of title, which is a separate action under
Rule 63 (declaratory relief and other similar remedies).
That is why when it comes to real property, there is
redemption.
A filed a case against B for a sum of money. Judgment
was rendered in favor of A. B could not pay the amount
so A was able to levy on the 3 race horses of B. The
same was duly registered. Until when may B redeem the
race horses? B cannot redeem. Redemption applies only
in real properties and horses are personal property.
When did A become the owner of the property? As of
the time of the levy (Sections 23, 24, 33). The rights of
ownership retroact to the time of levy.
Can you redeem soil on flowerpots? No, those are still
personal property. The nature of redemption is that this
property is immovable. You cannot relocate them. Soil
in a flowerpot can be relocated.
107
The period of redemption is 1 year from the registration
of the certificate of sale (example: March 2005-March
2006).
Within that period, who may redeem? Judgment obligor
or creditor who has a lien on the property.
What is the nature of the lien? Execution.
There are 2 kinds of persons who may redeem: (1)
judgment obligor; (2) redemptioner (examples:
attaching creditor, mortgagee; must be after the lien
under which the property was sold).
Look at the time frame: the property was levied on
January. It was sold in March. From the levy up to the
execution sale, there is a gap of 2 months. What lien are
we selling the property here? Under the levy of
execution. The levy took place on January. The sale took
place on March. Within January and March, who may be
a possible lien holder? B’s creditors.
Illustration: 1 hectare of land is levied upon. It was sold.
Who will negotiate or deal with that land within a 2-
month period? Under paragraph b, attaching creditor,
mortgagee, etc. Who owns this land? The judgment
obligor. When it is levied upon, is there anyone who
would deal with said land? (would anyone attach on the
land?) Rule 57. The other creditors of B! If the obligation
is P1,000,000, the value of the land is P10,000,000, a lot
of people would still deal with the property. These
people are redemptioners because they are selling the
property pursuant to a lien on levy on execution which
happened in January.
If this is January 2014, attachment was 2000! Within
that period from the time it was attached until it was
sold, 14 years went by. Section 1 of Rule 57, when can
you attach a property? At the commencement of the
action or at any time. When you attach the property
and you try to satisfy the judgment you don’t go to Rule
39. It is not sale on execution but sale on attachment. If
you were able to attach the property worth P10,000,000
and the debt was only P1,000,000, many other
subsequent lien holders will be dealing with the
property. These are called redemptioners. If your lien is
PRIOR to the lien under which the property was sold,
you are not a redemptioner.
 REMEDIAL LAW I (BRONDIAL)

If the judgment obligor redeems it, can a redemptioner
redeem it again? Why does the rule provide that once
the obligor redeems, no further redemption is allowed?
Because the property has returned to the original
owner.
If a redemptioner redeems, it can still be redeemed by a
judgment obligor or other redemptioner. When? Within
60 days from the previous redemption.
The one-year period can be extended but only as far as
the redemption is concerned. The last redemption will
only be the maximum limit. But if the last re-redemption
is only up to March 9. If it was redeemed by a
redemptioner and it would go beyond the maximum of
1 year, it may still be redeemed beyond that. But if the
Rule provides that a redemptioner can redeem it, with
more reason that the obligor could redeem it because it
belongs to him.

You can only redeem from a redemptioner. If it is the 1. the right of redemption vs equity of redemption
judgment obligor that first redeems the property, no
further redemption is allowed. But if it is a 2. who may redeem (Section 27)
redemptioner who redeems the property, within a
period of 60 days, it can still be redeemed either by theSection 27. Who may redeem real property so sold. —
judgment obligor or another redemptioner. If it exceeds Real property sold as provided in the last preceding
the 60 day period, section, or any part thereof sold separately, may be
redeemed in the manner hereinafter provided, by the
Mar 10, 1995  (1 year from registration of COS)  Mar following
9, 1996 persons:
(a) The judgment obligor; or his successor in interest in
Apr 5  Jun 4  Feb 14 the whole or any part of the property;
(b) A creditor having a lien by virtue of an attachment,
Within the 1 year period (March 10, 1995- March 9, judgment or mortgage on the property sold, or on some
1996), if it is redeemed by the judgment obligor, that’s part thereof, subsequent to the lien under which the
the end of it and there can no longer be any property was sold. Such redeeming creditor is termed a
redemption. redemptioner.

On April 5, it is redeemed by a redemptioner. Until 3. effect of redemption (Section 29)

when? Until June 4. This is a 60-day period. Can it still be
redeemed? Only by the judgment obligor beyond the
June 4.
In any occasion, the judgment obligor always has a
period of one year.
On February 14, a redemptioner redeems. Can it be
redeemed again? Until when may a redemptioner
redeem? April 14, even though it is beyond the one year
period. When it comes to redemptions, the Rules are
relaxed. The more redemptions, the better. It is
economically sound. The more obligations are paid for
with just one property, the better. Everybody wins. How
much is the additional amount? 2% if redemptioner; 1%
per month if judgment obligor. Even if the redemption
by a redemptioner is within a period of 1 month from
the last redemption, he pays 2% plus. But if it is the
judgment obligor that redeems, he pays only 1% for
every month.
Section 29. Effect of redemption by judgment obligor,
and a certificate to be delivered and recorded
thereupon; to whom payments on redemption made. —
If the judgment obligor redeems he must make the
same payments as are required to effect a redemption
by a redemptioner, whereupon, no further redemption
shall be allowed and he is restored to his estate. The
person to whom the redemption payment is made must
execute and deliver to him a certificate of redemption
acknowledged before a notary public or other officer
authorized to take acknowledgments of conveyances of
real property. Such certificate must be filed and
recorded in the registry of deeds of the place in which
the property is situated and the registrar of deeds must
note the record thereof on the margin of the record of
the certificate of sale. The payments mentioned in this
and the last preceding sections may be made to the
purchaser or redemptioner, or for him to the officer
who made the sale.

108
 REMEDIAL LAW I (BRONDIAL)
H. Other remedies to fully satisfy judgment
(Referring to section 6 example) In this revived
judgment, which you can revive again and again so
judgment will not expire for execution purposes,
suppose you were not able to satisfy it fully, what other
legal recourse do you have to fully satisfy it?
Judgment for money under section 9: payment, levy,
garnishment. If you have exhausted all of these but the
judgment is still not satisfied, what are your other
remedies? Examination of the judgment obligor under
section 36, examination of obligor of judgment obligor
under section 37, appointment of a receiver under
section 41 and sale of ascertainable interest under
section 42.
1. Examination of judgment obligor (Section 36)
Section 36. Examination of judgment obligor when
judgment unsatisfied. — When the return of a writ of
execution issued against property of a judgment obligor,
or any one of several obligors in the same judgment,
shows that the judgment remains unsatisfied, in whole
or in part, the judgment obligee, at any time after such
return is made, shall be entitled to an order from the
court which rendered the said judgment, requiring such
judgment obligor to appear and be examined
concerning his property and income before such court
or before a commissioner appointed by it at a specified
time and place; and proceedings may thereupon be had
for the application of the property and income of the
judgment obligor towards the satisfaction of the
judgment. But no judgment obligor shall be so required
to appear before a court or commissioner outside the
province or city in which such obligor resides or is
found.
2. Examination of obligor of judgment obligor
(Section 37)
Section 37. Examination of obligor of judgment obligor.
— When the return of a writ of execution against the
property of a judgment obligor shows that the judgment
remain unsatisfied, in whole or in part, and upon proof
to the satisfaction of the court which issued the writ,
that a person, corporation, or other juridical entity has
property of such judgment obligor or is indebted to him,
the court may, by an order, require such person,
109
corporation, or other juridical entity, or any officer, or
member thereof, to appear before the court or a
commissioner appointed by it, at a time and place
within the province or city where such debtor resides or
is found, and be examined concerning the same. The
service of the order shall bind all credits due the
judgment obligor and all money and property of the
judgment obligor in the possession or in the control of
such person corporation, or juridical entity from the
time of service; and the court may also require notice of
such proceedings to be given to any party to the action
in such manner as it may deem proper.
3. Appointment of a receiver (Section 41)
Section 41. Appointment of receiver. — The court may
appoint a receiver of the property of the judgment
obligor; and it may also forbid a transfer or other
disposition of, or any interference with, the property of
the judgment obligor not exempt from execution.
4. Sale of ascertainable interest (Section 42)
Section 42. Sale of ascertainable interest of judgment
obligor in real estate. — If it appears that the judgment
obligor has an interest in real estate in the place in
which proceedings are had, as mortgagor or mortgagee
or otherwise, and his interest therein can be ascertained
without controversy the receiver may be ordered to sell
and convey such real estate or the interest of the
obligor therein; and such sale shall be conducted in all
respects in the same manner as is provided for the sale
of real state upon execution, and the proceedings
thereon shall be approved by the court before the
execution of the deed.
Suppose the obligor comes from a very rich family. Can
the receiver sell the interest of the obligor in the estate
of his father?
I. Judgment: principal vs surety (Section 46)
Section 46. When principal bound by judgment against
surety. — When a judgment is rendered against a party
who stands as surety for another, the latter is also
bound from the time that he has notice of the action or
proceeding, and an opportunity at the surety's request
to join in the defense.
 REMEDIAL LAW I (BRONDIAL)
When you execute a judgment against a surety, should
you implead the principal?
General rule: You cannot run after the surety without
the principal.
Exception: In matters of implementing a judgment
against a principal and a surety, you don’t have to bring
in the principal. The surety is already an indispensable
party. But you may bring in the principal if you want to
because the principal is a necessary party.
J. Effect of judgment (Section 47)
Section 47. Effect of judgments or final orders. — The
effect of a judgment or final order rendered by a court
of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to
another, the judgment or final order is conclusive upon
the title to the thing, the will or administration or the
condition, status or relationship of the person, however,
the probate of a will or granting of letters of
administration shall only be prima facie evidence of the
death of the testator or intestate;
(b) In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to any
other matter that could have been missed in relation
thereto, conclusive between the parties and their
successors in interest, by title subsequent to the
commencement of the action or special proceeding,
litigating for the same thing and under the same title
and in the same capacity; and
(c) In any other litigation between the same parties or
their successors in interest, that only is deemed to have
been adjudged in a former judgment or final order
which appears upon its face to have been so adjudged,
or which was actually and necessarily included therein
or necessary thereto.
110
Among the grounds in a motion to dismiss in Rule 16 is
res judicata. The explanation of res judicata is in Section
47.
(a) and (b) of Section 47 is res judicata proper or
estoppel (barred by prior judgment).
(c) is conclusiveness of judgment. As to the issue, it can
no longer be retried in the next case.
The issue of ownership has already been resolved in
unlawful detainer. Can that be again resolved in another
case (reivindicatoria)? Yes. This is the exception. Under
Rule 70, the only issue in unlawful detainer is
possession. In an action for unlawful detainer, if the
issue of ownership is raised in the pleading, the court is
not divested of its jurisdiction but must resolve the issue
of ownership only to resolve the issue of possession.
In all other instances, conclusiveness of judgment will
apply. Like in settlement of estate, if you are probating
the will, probating of the will only refers to the
authenticity and due execution of the will, nothing else.
If the parties submit to the probate court the issue of
ownership of properties belonging to the estate, and
the court resolves that, you cannot bring that up
anymore because conclusiveness of judgment will apply.
K. Effect of foreign judgment (Section 48)
Republic vs Orbesillo: A and B divorced in another
country. In the Philippines, A is still married to B but B,
who is not in the Philippines, is not married to A
anymore. He filed declaratory relief under Rule 63,
wanting to know what his rights are in the Philippines.
SC: Fine, you can remarry since it would be
unreasonable if you remain married to someone who is
not married to you.
How do you enforce foreign judgment here? There must
be a petition for enforcement of a foreign judgment.
You cannot implement a foreign judgment here in the
country. You file another case, the subject matter of
which is the judgment.
In Manotoc, that is an enforcement of a foreign
judgment. Imee Manotoc was adjudged abroad and she
wanted to implement that here. Judgment obligee said
it cannot be implemented. Manotoc filed an
 REMEDIAL LAW I (BRONDIAL)
enforcement of that foreign judgment. The summons
was served to Maki dela Cruz, who was not related to
Imee. The doctrine here is substituted service. You
cannot enforce that here.
The rule distinguishes: If it is judgment against a
specific thing, it is conclusive; if it is against a person, it
is a presumptive evidence of a right (example:
divorce).
Section 48. Effect of foreign judgments or final orders.
— The effect of a judgment or final order of a tribunal of
a foreign country, having jurisdiction to render the
judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order, is conclusive upon
the title to the thing, and
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a
right as between the parties and their successors in
interest by a subsequent title.
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact.
Panotes vs CTDC: The property was sold to him as a
buyer, not as a developer. He was not a successor-in-
interest because he was a buyer in good faith. He did
not even know there was an encumbrance in the
property. Writ of execution cannot be implemented
against a non-party to an action. How about a
successor-in-interest? Under the doctrine of res
judicata, identity of parties is not absolute. It is identity
of interest and not identity of persons.
The case stemmed from a complaint filed with the
National Housing Authority (NHA) by Rogelio Panotes,
then president of the Provident Village Homeowners
Association, Inc., against Provident Securities
Corporation (PROSECOR), owner-developer of the
Provident Village in Marikina City. The complaint alleges
that PROSECOR violated PD 957 (REGULATING THE SALE
OF SUBDIVISION LOTS AND CONDOMINIUMS,
PROVIDING PENALTIES FOR VIOLATIONS THEREOF), one
of which was its failure to provide an open space in the
111
said subdivision. NHA directed PROSECOR to provide the
Provident Village an open space which is Block 40.
Considering that PROSECOR did not appeal from the
NHA Resolution, it became final and executory.
When Panotes filed a motion for execution of the NHA
Resolution, it was found that the records of the case
were “mysteriously missing.” Hence, his motion was
“provisionally dismissed” without prejudice.
Meanwhile, PROSECOR sold to City Townhouse
Development Corporation (CTDC), respondent, several
lots in the subdivision. Among the lots sold were those
comprising Block 40. CTDC was unaware of the NHA
Resolution ordering PROSECOR to have Block 40 utilized
as open space of Provident Village.
The new president (Araceli Bumatay) of the Provident
Homeowners Association, Inc. filed with the HLURB a
complaint for the revival of the NHA Resolution.
Impleaded thereon as defendant was CTDC, which was
alleged as successor-in-interest of PROSECOR. HLURB
rendered its Decision in favor of Bumatay, reviving NHA
Resolution and declaring Block 40 of the Provident
Village as “open space” for the said subdivision. On
appeal to the HLURB Board of Commissioners, the
Decision was affirmed with modification in the sense
that CTDC has the right to recover from PROSECOR
“what it has lost.” After its MR was denied, CTDC
interposed an appeal to the Office of the President
which affirmed in toto the judgment of the HLURB
Board of Commissioners. CTDC then filed with the CA a
petition for review under Rule 43. CA rendered its
Decision reversing the Decision of the OP and dismissing
the complaint for revival of judgment.
SC: NHA Resolution may not be enforced against CTDC.
An action for revival of judgment is no more than a
procedural means of securing the execution of a
previous judgment which has become dormant after the
passage of 5 years without it being executed upon
motion of the prevailing party. It is not intended to re-
open any issue affecting the merits of the judgment
debtor’s case nor the propriety or correctness of the
first judgment.
The original judgment or the NHA Resolution sought to
be revived was between Rogelio Panotes and
PROSECOR, not between petitioner Araceli Bumatay and
 REMEDIAL LAW I (BRONDIAL)
respondent CTDC. In maintaining that CTDC is bound by
the NHA Resolution, petitioner claims that CTDC is the
successor-in-interest of PROSECOR and, therefore,
assumed the obligations of the latter to provide an open
space for Provident Village. CTDC purchased from
PROSECOR Block 40 in the said village, not as an owner-
developer like PROSECOR, but as an ordinary buyer of
lots. Even after the sale, CTDC did not become an
owner-developer. The Deed of Sale executed by CTDC,
as buyer, and PROSECOR, as seller, shows that the
subject matter of the sale is the unsold lots comprising
Block 40 within the subdivision to CTDC. The contract
does not include the transfer of rights of PROSECOR as
owner-developer of the said subdivision. Clearly, there
is no basis to conclude that CTDC is the successor-in-
interest of PROSECOR. When CTDC bought Block 40,
there was no annotation on PROSECOR’s title showing
that the property is encumbered. In fact, the NHA
Resolution was not annotated thereon. CTDC is thus a
buyer in good faith and for value, and as such, may not
be deprived of the ownership of Block 40.
The real party-in-interest in the revival of NHA Case is
PROSECOR and not CTDC. PROSECOR was the lone
defendant or respondent in that case against whom
judgment was rendered. To insist that CTDC is a
successor-in-interest of PROSECOR may have some
truth if we are talking about the ownership of the lots
sold by PROSECOR in favor of CTDC as a result of a civil
action between the two. But then, to hold CTDC as the
successor-in-interest of PROSECOR as the developer of
the subdivision, is far from realty. CTDC is simply on the
same footing as any lot buyer-member of PVHIA.
Furthermore, strangers to a case, like CTDC, are not
bound by the judgment rendered by a court. It will not
divest the rights of a party who has not and never been
a party to a litigation. Execution of a judgment can be
issued only against a party to the action and not against
one who did not have his day in court.
Fajardo vs Quitalig: Sheriff Rodolfo Quitalig of the MTCC
was charged by Reverend Fernando Fajardo with
conduct prejudicial to the best interest of the service
and/or dereliction of duty.
Petitioner filed a motion for execution of a judgment in
an ejectment case. The court issued a writ of execution.
Sheriff served writ on defendant, who asked for a period
112
of 2 weeks to remove her personal properties. After 2
weeks he went to Sheriff Quitalig so that the Writ of
Execution may be implemented but he was told that a
restraining order was issued, but when he asked for it,
Quitalig told him that he left it in the office. Fajardo
discovered that no restraining order has really been
issued. He told Quitalig to implement the Writ of
Execution. Sheriff, accompanied by a policeman and the
barangay captain went to the place where the Writ of
Execution is to be implemented but when they reached
the place, Quitalig did not do anything except to ask the
defendant to bring out her personal properties. His
reason is that an employee of the Probation Office,
Leonardo Martinez, talked to him. The restraining order
was brought to the place, and Quitalig told him that the
writ of execution can no longer be implemented.
Quitalig denied the charge. He asked for the dismissal of
the case, because he had already implemented the Writ
as evidenced by his Report of Service. OCA found
Quitalig to have been negligent in the performance of
his duty as a sheriff.
SC: Quitalig was negligent in the performance of his
duty as sheriff. Quitalig enforced the Writ of Execution
dated March 7, 2000 only on August 24, 2000, as shown
by his August 25, 2000 Report of Service. Within 30 days
from receipt thereof and every 30 days thereafter until
the judgment is fully satisfied, a sheriff is required by
the Rules of Court to render a report on the action
taken on a writ of execution. Evidently, Quitalig was not
only remiss in his implementation of the Writ, but
likewise derelict in his submission of the returns
thereof.
Quitalig should have immediately implemented and
made a return of the Writ after duly serving it upon the
defendant on March 9, 2000. Nonetheless, because of
the request of the defendant and her promise that she
would vacate the premises on March 23, 2000, he
allowed her to remain there. However, when he came
back on March 24, 2000, he was unable to enforce the
Writ because of a TRO issued by the RTC. He averred
that he was finally able to execute the Writ on August
24, 2000 and to submit his Return thereof on the next
day.
By his own words, Quitalig admitted his dereliction of
duty. First, as we have said earlier, he should have
 REMEDIAL LAW I (BRONDIAL)
immediately executed the Writ when he served it upon
the defendant on March 9, 2000. Second, he should
have immediately reported to the MTCC that he was
unable to enforce the Writ because another court had
issued a TRO enjoining him from doing so. Third, he
should have informed the parties, particularly the
plaintiff or his counsel, about his inability to enforce the
Writ. Fourth, he should have immediately enforced it 20
days after its issuance. Fifth, he should have made
periodic Reports to the MTCC until the judgment was
fully satisfied and the parties furnished a copy thereof.
Sixth, within 30 days from his receipt of the Writ, he
should have promptly made his Return, a copy of which
he should have immediately furnished the parties.
The actuations of Quitalig constitute disrespect, if not
outright defiance, of the MTCC’s authority. In the
absence of instructions to the contrary, a sheriff has the
duty to execute a Writ with reasonable celerity and
promptness in accordance with its mandate.
RCBC vs Magwin Marketing Corp
Villaruel vs Fernando: Panfilo Villaruel is the former
Assistant Secretary for Air Transportation Office (ATO)
of DOTC. Fernando, Abarca and Cleofas are the Chief,
Chief Admin Assistant and Admin Assistant of Civil
Aviation Training Center (an adjunct agency of ATO
tasked to train air traffic controllers, airway
communicators and related civil aviation personnel).
Villaruel issued a memorandum detailing respondents
to the Office of DOTC Undersecretary Primitivo Cal. The
latter wrote to DOTC Secretary Garcia requesting to
reconsider the detail order but to comply with the
order, they reported Cal’s office.
Without acting on this request, Villaruel issued another
memorandum placing Abarca under preventive
suspension for 90 days without pay pending
investigation for alleged grave misconduct. After 90
days, respondents requested Sec. Garcia to lift these
orders and they also sought the intervention of the
Ombudsman. Ombudsman inquired but Garcia only
replied that he already issued a memorandum recalling
respondents to their mother unit. In the end, the
respondents were never reinstated to their old
positions.
113
Respondents filed a Petition for Mandamus and
Damages with Prayer for Preliminary Mandatory
Injunction (RTC). Injunction was granted and ordered
Villaruel to recall respondents to their mother unit.
Villaruel never complied with this order so he was
declared guilty of indirect contempt.
Villaruel, through the OSG, filed a special civil action for
certiorari (CA) assailing the order of contempt.
Meanwhile trial in the RTC continued and Villaruel was
declared in default. Respondents’ evidence were
already presented ex parte. Judgment was rendered in
favor of the respondents.
Villaruel appealed this decision to CA. (So he has two
cases before CA: certiorari and appeal). Apparently,
respondents filed MTD in the certiorari case and it was
granted because the issue there is already moot and
academic. OSG failed to file a memorandum. The appeal
was dismissed. Assistant Solicitor Luciano filed MR but it
was denied and the resolution was declared final and
executory.
Respondents filed a Motion for Execution with the RTC
and a copy was served to OSG but the latter did not file
any opposition. RTC issued a writ of execution and the
sheriff issued a notice of sheriff’s sale (Villaruel’s real
estate property).
Villaruel through a new counsel filed a Motion to Quash
Writ of Execution and Suspend Sheriff’s sale alleging
that the RTC’s decision never became final and
executory because it deprived him of due process. OSG
failed to file his memorandum and failed to inform him
of the orders of dismissal and granting of execution. He
further alleged that the resolution of the Ombudsman
(Abarca was found guilty, Fernando and Cleofas were
also dismissed) superseded the RTC decision. RTC
quashed the writ because the Sheriff failed to follow
Section 9, Rule 39 and issued an Alias Writ. The MR filed
by Villaruel was denied. Villaruel went to CA again and
filed certiorari (based on the motion for execution). CA
dismissed this and the MR so now Villaruel filed this
case.
Issue: WON the Ombudsman resolution finding Abarca
guilty superseded the trial court’s decision and rendered
it unjust and inequitable.
 REMEDIAL LAW I (BRONDIAL)
SC: No. A judgment that has acquired finality becomes
immutable and unalterable and may no longer be
modified in any respect except only to correct clerical
errors or mistakes. This rule admits of certain
exceptions. One of these exceptions is whenever
circumstances transpire after the finality of the decision
rendering its execution unjust and inequitable. This,
however, is not the case here. The Ombudsman issued
his Resolution prior to the finality of the RTC’s decision.
The Ombudsman issued his Resolution on 22 January
1997 while the RTC’s decision became final and
executory on 14 June 1997. Therefore, the resolution of
the Ombudsman is not a supervening event to warrant
the stay of the execution of the decision of the trial
court.
Furthermore, the resolution of the Ombudsman finding
Abarca guilty of violating Section 7(d) of RA 6713 did not
and could not supersede the decision of the RTC holding
petitioner liable for damages. The action filed by the
petitioner before the Ombudsman is completely
different from the action instituted by respondents
before the RTC. The 2 actions, which are clearly
separate and distinct from each other, presented 2
different causes of action. Petitioner’s cause of action
arose from respondents’ alleged violation of certain
provisions of RA 6713 whereas respondents’ cause of
action resulted from petitioner’s refusal to recall
respondents to their mother unit at CATC. In the
administrative case before the Ombudsman, the issue
was whether respondents were guilty of violating RA
6713. In contrast, the issue in the civil action before the
RTC was whether respondents were entitled to the
issuance of the writ of mandamus and damages.
The findings of the Ombudsman did not render the
execution of the trial court’s decision unjust and
inequitable. The resolution of the Ombudsman finding
Abarca guilty of violating Section 7(d) of RA 6713 did not
state that petitioner had a valid reason to detail
respondents to the Office of Undersecretary Cal. In fact,
the Ombudsman dismissed the charges against
Reynaldo Fernando and Mary Lou Cleofas. Thus, the
trial court correctly awarded damages to respondents.
Contrary to petitioner’s contention, awarding damages
to respondents does not amount to rewarding
respondents for their alleged wrongdoing. The award
merely compensates respondents for petitioner’s own
114
unlawful acts. Clearly illegal were petitioner’s acts of
unjustifiably detailing respondents to the office of DOTC
Undersecretary Cal and refusing to comply with the 9
November 1995 directive of Secretary Garcia to recall
immediately respondents to their mother unit.
Morta vs Bagagnan: Sps. Morta charged Judge
Bagagnan of the MTC with gross ignorance of the law,
incompetence, bias and delay. They also indicted Sheriff
Matias of RTC with gross ignorance of the law,
negligence and connivance with the defendants in 2 civil
cases in the MTC.
Judge Magagnan, in his Answer/Comment, explained
that he had denied the spouses' motion for the issuance
of a writ of possession because by the time the 2 civil
cases were finally decided by the SC, they had already
been ousted from the lots pursuant to a DARAB decision
(directing them to cease and desist from disturbing the
peaceful possession of Jaime Occidental), and a decision
ordering the spouses to vacate the lots (a writ of
execution/demolition was issued). Regarding the
alleged delay in the resolution of the Motion for
Contempt, Judge Bagagnan contended that an ocular
inspection and a hearing had been conducted to
determine if their motion had any basis. The hearing
had to be deferred pending receipt of the sheriff's
report.
Sheriff Matias admitted that there was delay in the full
implementation of the Writ of Execution of the 2 civil
cases, and explained that the delay was due to his heavy
workload and was unintentional.
Office of the Court Administrator (OCA): the explanation
of the judge was sufficient, the records showed that the
spouses had been evicted from the lots they were
claiming when the 2 civil cases were finally decided by
the SC; the delay in the contempt proceedings was due
primarily to the need of the court to clarify some
important matters, and not due to the negligence or
partiality of the judge. OCA recommended that the
charges against him be dismissed. OCA, however, found
that Sheriff Matias failed to implement the Writ of
Execution promptly and efficiently, and recommended
that he be ordered to pay a fine.
SC: The writ of execution was not implemented
promptly and efficiently. Sheriff Matias is guilty of
 REMEDIAL LAW I (BRONDIAL)
simple neglect of duty. The final stage in the litigation
process, the execution of judgment, must be carried out
promptly. Those tasked to implement court orders and
processes should exert every effort and indeed consider
if their bounden duty to do so, in order to ensure the
speedy and efficient administration of justice. A decision
that is left unexecuted or delayed indefinitely because
of the sheriff’s inefficiency or negligence remains an
empty victory on the part of the prevailing party. For
this reason, any inordinate delay in the execution of
judgment is truly deplorable and cannot be
countenanced by the Court.
According to Section 14, Rule 39 of the ROC, a writ of
execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in
part or in full. If the judgment cannot be satisfied in full
within 30 days after his receipt of the writ, the officer
shall report to the court and state the reason. Such writ
shall continue in effect during the period within which
the judgment may be enforced by motion. The officer
shall make a report to the court every 30 days on the
proceedings taken thereon until the judgment is
satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the
proceedings taken, and shall be filed with the court and
copies thereof promptly furnished the parties.
According to Administrative Circular No. 12, October 1,
1985, he must submit to the judge concerned a report
on actions taken on all writs and processes assigned to
them within 10 days from receipt.
A Writ of Execution was issued November 22, 1999. The
Return of Service of that Writ was filed on May 25,
2000, about 6 months after. There is nothing in the
records that shows he submitted a periodic report on
the actions he had taken every 30 days. The writ was
partially executed on December 15-28, 1999 and
January 11, 2000, but it was only on May 25 that this
matter was reported to the trial court. The excuse of
heavy workload cannot absolve the Sheriff from
administrative sanctions. He should at all times show
how a high degree of professionalism in the
performance of his duties. He failed to observe that
degree of dedication required of him as a sheriff.
Serrano vs CA: Sps Serrano were the owners of a parcel
of land at QC. The couple mortgaged the properties in
115
favor of GSIS as security for a loan of P50,000. However,
the couple was able to pay only P18,000.
Sps Serrano, as vendors, and Sps Emilio and Evelyn Geli,
as vendees, executed a deed of absolute sale with
partial assumption of mortgage over the parcel of land.
The Sps Geli paid P38,000 as partial payment, with the
balance of P32,000 to be paid by them to the GSIS for
the account of Sps Serrano. The Sps Geli thereafter took
possession of the property. Evelyn Geli died and was
survived by husband Emilio Geli and their children.
However, Emilio and his children failed to settle the f
P32,000 to GSIS. GSIS filed a complaint against Geli and
his children with RTC for the recission of the deed of
absolute sale with partial assumption of mortgage. RTC
ordered the rescission of the deed.
Geli appealed to the CA. During pendency of the appeal,
GSIS foreclosed the real estate mortgage over the
property for non-payment of the P50,000 loan. GSIS
was the highest bidder at the public auction. A
certificate of sale over the property was issued by the
sheriff Geli paid the redemption price to GSIS, wherein
GSIS executed a certificate of redemption and turned
over to Geli the TCT in the names of Sps Serrano. Geli
did not inform the Sps Serrano and the CA that he had
paid the redemption price to GSIS. CA dismissed the
appeal of Geli on the ground that the appellants failed
to pay the requisite docket fees. No motion for
reconsideration was filed. The dismissal of the appeal
became final and executory.
Sps Serrano filed with the RTC a motion for execution of
the RTC’s earlier decision. The defendants Geli filed a
motion to quash the claim because he had already
redeemed the property, arguing that this constituted a
supervening event that would make the execution of
the trial court’s decision unjust and inequitable.
RTC denied the motion. It noted that the payment of
Geli of the redemption price took place before the CA
dismissed the appeal, and before the decision of the
RTC became final, hence, it did not constitute a
supervening event warranting a quashal of the writ of
the execution.
Emilio Geli died intestate and was survived by his
children. The heirs filed with the CA a petition for
 REMEDIAL LAW I (BRONDIAL)
certiorari and/ or prohibition praying for the
nullification of the RTC orders. Under the terms of the
deed of absolute sale with assumption of mortgage
which was still subsisting at that time, they were ipso
facto subrogated to the rights of the Spouses Serrano as
mortgagors of the property; hence, they became the
owners of the property and were entitled to the
possession thereof. CA ruled that since Geli paid the
redemption price while his appeal was pending with the
CA, the redemption was a supervening event which
rendered the enforcement of the writ of execution
issued by the RTC against them unjust and inequitable.
Petitioner argues: that the payment of the redemption
price by Emilio Geli during the pendency of the appeal in
the CA was ineffective because, subsequently, when the
respondents’ appeal was dismissed by the CA, the
summary decision of the RTC declaring the deed of
absolute sale with partial assumption of mortgage
rescinded had become final and executory. The deed of
absolute sale with partial assumption of mortgage
executed by the petitioners and the Spouses Geli had
ceased to exist with its rescission as decreed by the RTC.
According to the petitioners, the payment of the
redemption price was conditioned upon the perfection
and outcome of the appeal. Since the appeal of the
respondents was dismissed by their failure to pay the
requisite docket fees, they must suffer the
consequences thereof.
Issue: WoN the redemption constituted a supervening
event which changed the relation of the parties, thus
rendering execution inequitable under the premises.
SC: No. Generally, the execution upon a final judgment
is a matter of right on the part of the prevailing party. It
is the ministerial and mandatory duty of the trial court
to enforce its own judgment once it becomes final and
executory. It may happen, however, that new facts and
circumstances may develop or occur after a judgment
had been rendered and while an appeal therefrom is
pending; or new matters had developed after the
appeal has been dismissed and the appealed judgment
had become final and executory, which the parties were
not aware of and could not have been aware of prior to
or during the trial or during the appeal, as they were not
yet in existence at that time. In the first situation, any
attempt to frustrate or put off the enforcement of an
executory decision must fail. Once a judgment has
116
become final and executory, the only remedy left for
material attention thereof is that provided for in Rule 38
of the Rules of Court, as amended. There is no other
prerequisite mode of thwarting the execution of the
judgment on equitable grounds predicated on facts
occurring before the finality of judgment. In the second
situation, the execution may be stayed, notwithstanding
the affirmance of the appealed judgment by this Court.
It is required, however, that the supervening facts and
circumstances must either have a direct effect upon the
matter already litigated and settled or create a
substantial change in the rights or relations of the
parties therein which would render execution of a final
judgment unjust, impossible or inequitable or when it
becomes imperative in the interest of justice. The
interested party may file a motion to quash a writ of
execution issued by the trial court, or ask the court to
modify or alter the judgment to harmonize the same
with justice and further supervening facts. Evidence may
be adduced by the parties on such supervening facts or
circumstances.
The payment by Emilio Geli to the GSIS for the account
of the petitioners was made while the appeal of the
private respondents from the summary judgment of the
RTC was pending. The summary judgment of the RTC
had not yet become final and executory. It behooved
the said respondents to prosecute their appeal and file
their brief, where they should have invoked the
payment of the redemption price as a ground for the
reversal of the trial court’s summary judgment in their
favor. The respondents failed to do so, and even
concealed the payment of the loan for the account of
the petitioners. Worse, the respondents did not pay the
requisite docket fees for their appeal, which resulted in
its dismissal. The respondents even opted not to file
any motion for the reconsideration of the resolution of
the CA dismissing their appeal. In sum, the respondents
allowed the decision of the trial court to become final
and executory. Consequently, the enforcement of the
summary judgment of the trial court can no longer be
frustrated by the respondents’ payment, through Emilio
Geli, to the GSIS in 1987.
Irrefragably, the Spouses Geli, as vendees-mortgagors
under the deed of absolute sale with partial assumption
of mortgage, would have been subrogated to the rights
and obligations of the petitioners under the said deed,
including the right to redeem the property from the
 REMEDIAL LAW I (BRONDIAL)
GSIS. However, the CA dismissed their appeal for failure
to pay the requisite docket fees, and such dismissal
became final and executory. Hence, the summary
judgment of the trial court declaring the deed of
absolute sale with partial assumption of mortgage
rescinded had also become final and executory.
Perez vs CA: The spouses Digos secured a loan of P5.8
million from the International Exchange Bank to finance
their project for the construction of townhouses on
their property. However, the project was delayed
because the homeowners in Pillarville Subdivision which
abutted the property refused to allow them to build an
access road. Thus, the equipment to be used for the
project could not pass through.
The spouses Digos failed to pay the amortization on
their loan. The Bank caused the extrajudicial foreclosure
of their real estate mortgage. The property was sold at
public auction with the bank as the highest bidder at
P4.5 million, which appeared to be the account of the
spouses at that time. The certificate of sale was
executed by the sheriff and was registered with the
Register of Deeds.
In the meantime, the spouses referred the matter to
barangay conciliation but the barangay captain failed to
resolve the matter due to the vehement objections of
some of the subdivision homeowners.
The spouses wrote the bank and asked for 6 months
within which to redeem the property. The bank denied
their request. They again wrote to the bank and pleaded
for an extension of 3 months to redeem the property.
The bank granted them 1 month. However, the bank
consolidated its title over the property and the Register
of Deeds issued a TCT in the bank’s name.
First Complaint:
Instead of repurchasing the property, the spouses filed a
complaint against the bank for the nullification of the
extrajudicial foreclosure of the real estate mortgage and
sale at public auction and/or redemption of the
property, with a prayer for a temporary restraining
order and a writ of preliminary injunction to enjoin the
bank from consolidating the title over the property.
Allegations:
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- They were denied due process because the
foreclosure of the real estate mortgage was
extrajudicial.
- The sale at public auction was without prior notice
to them.
- The property was sold for only P4.5 million, the
balance of their account with the bank but about
400% lower than the prevailing price of the
property.
- The bank rejected their plea for a 5 month
extension to redeem, and their offer of P1 million
in partial payment of their loan account to reduce
the same to P3.5 million but the bank granted them
an extension of only 1 month to redeem the
property, designed to divest them of the same and
enrich some characters at their expense.
The spouses caused the annotation of a notice of lis
pendens at the dorsal portion of the TCT. The trial court
did not issue a TRO or writ of preliminary injunction. The
bank moved for dismissal and for the cancellation of the
notice of lis pendens.
The trial court granted the bank’s motion to dismiss.
The trial court held that it had no authority to extend
the period for redemption and since it had already
expired, the spouses had no more right to redeem the
property; as such, the defendant [bank] had the right to
consolidate its title to the property.
The spouses did not appeal. Instead, they filed a petition
for certiorari with the CA. CA dismissed the petition for
being filed out time. They filed an MR but they later
withdrew via a motion. CA resolved to grant the motion
and the resolution dismissing the petition became final
and executory. Entry of judgment was made.
Meanwhile, the bank sold the property to the
petitioners, Isidro Peres and Narciso Ragua. The Register
of Deeds issued a TCT in their names.
Second complaint:
The spouses filed a complaint with the RTC against the
bank, Perez and Ragua, for the cancellation and
annulment of the extrajudicial foreclosure of the real
estate mortgage executed by them in favor of the bank,
the sale at public auction as well as the certificate of
 REMEDIAL LAW I (BRONDIAL)
sale executed by the sheriff, and the Torrens title issued
to them.
Allegations:
- They reiterated the allegations in the first
complaint.
- They admitted their failure to pay the amortization
on their loans.
- That the extrajudicial foreclosure of the real estate
mortgage and the sale at public auction were illegal
because the bank charged much more than the
amount due on their loan account.
- That although they pleaded for a restructuring of
their loan account and a moratorium on the
payment of their account, they were unaware of
the erroneous computation of the balance of their
loan account.
- That the bank’s consolidation of its title over the
property was premature because they were given
one month to redeem their property.
The bank filed a motion to dismiss. The bank alleged,
among others, that the spouses were guilty of splitting a
single cause of action because they already assailed the
extrajudicial foreclosure of the real estate mortgage and
the sale of the property at public auction on account of
lack of due process and arbitrary abuse in their first
complaint and again sought to do so in the second
complaint this time grounded on the invalid foreclosure
of the real estate mortgage, and the sale at public
auction of the property for an amount in excess of the
balance of the loan account. The bank also alleged that
the spouses are barred by res judicata form filing the
second complaint for the same causes of action even if
additional defendants were impleaded. Consequently,
they were also guilty of forum shopping. Perez and
Ragua filed a motion to dismiss on similar grounds.
The RTC denied the motions, ruling that there was no
identity of issue in the 2 actions because the second
complaint assailed the legality of the extrajudicial
foreclosure, on the sole ground that the bank had
unlawfully increased their obligation, contrary to the
terms and conditions of the loan contract. The court
held that the causes of action in the 2 complaints were
not identical: in the first case, it was for the
redemption of the mortgaged property, distinct and
separate from their cause of action in the second case
118
which is rooted on the erroneous computation of the
balance of their loan account with the bank.
The defendants filed an MR but it was denied. They filed
a petition for certiorari, prohibition and mandamus to
the CA. The CA dismissed the petition and affirmed the
RTC orders.
SC: The second complaint is barred by res judicata.
Section 49(b) enunciates the first concept of res
judicata, known as bar by prior judgment or estoppel
by judgment, which refers to a theory or matter that
has been definitely and finally settled on its merits by a
court of competent jurisdiction without fraud or
collusion.
There are 4 essential requisites which must concur for
the application of this doctrine:
(a) finality of the former judgment;
(b) the court which rendered it had jurisdiction over
the subject matter and the parties;
(c) it must be a judgment on the merits; and
(d) there must be, between the first and second
actions, identity of parties, subject matter and
causes of action.
Section 49(c) of Rule 39 enumerates the concept of
conclusiveness of judgment. This is the second branch,
otherwise known as collateral estoppel or estoppel by
verdict. This applies where, between the first case
wherein judgment is rendered and the second case
wherein such judgment is involved, there is no identity
of causes of action. As explained by this Court:
It has been held that in order that a judgment in one
action can be conclusive as to a particular matter in
another action between the same parties or their
privies, it is essential that the issues be identical. If a
particular point or question is in issue in the second
action, and the judgment will depend on the
determination of that particular point or question, a
former judgment between the same parties will be final
and conclusive in the second if that same point or
question was in issue and adjudicated in the first suit;
but the adjudication of an issue in the first case is not
 REMEDIAL LAW I (BRONDIAL)
conclusive of an entirely different and distinct issue
arising in the second. In order that this rule may be
applied, it must clearly and positively appear, either
from the record itself or by the aid of competent
extrinsic evidence that the precise point or question in
issue in the second suit was involved and decided in
the first. And in determining whether a given question
was an issue in the prior action, it is proper to look
behind the judgment to ascertain whether the
evidence necessary to sustain a judgment in the
second action would have authorized a judgment for
the same party in the first action.
If indeed the bank made an erroneous computation of
the balance of their account as claimed by the private
respondents in their second complaint, this should have
been alleged in the first complaint as one of their causes
of action. They failed to do so. The private respondents
unequivocably admitted in their first complaint that the
balance of their account with the bank was
P4,500,000.00 which was the precise amount for which
the bank sought the foreclosure of the real estate
mortgage and the sale of the property at public auction;
they even sought judicial recourse to enable them to
redeem the property despite the lapse of the one-year
period therefor.
Relying on these admissions on the part of the private
respondents, and the fact that the bank has already
consolidated its title over the property, the Court thus
dismissed their first complaint. The Order of the Court
dismissing the first complaint is a judgment of the case
on the merits.
The attempt of the respondents in their second
complaint to avoid the application of the principle of res
judicata by claiming the nature of their account on the
ground therefor and their legal theory cannot prosper.
Case law has it that where a right, question or fact is
distinctly put in issue and directly determined by a court
of competent jurisdiction in a first case, between the
same parties or their privies, the former adjudication of
that fact, right or question is binding on the parties or
their privies in a second suit irrespective of whether the
causes of action are the same. The ruling of the CA that
the action of the private respondents and their legal
theory in their second complaint were different from
their causes of action and legal theory in the first
complaint is not correct. A different cause of action is
119
one that proceeds not only on a sufficiently different
legal theory, but also on a different factual footing as
not to require the trial of facts material to the former
suit; that is, an action that can be maintained even if all
disputed factual issues raised in the plaintiff’s original
complaint are concluded in defendant’s favor.
In this case, the private respondents’ second complaint
cannot be maintained without trying the facts material
to the first case, and the second case cannot be
maintained if all the disputed factual issues raised in the
first complaint are considered in favor of the bank.
The principle of res judicata applies when the
opportunity to raise an issue in the first complaint
exists but the plaintiff failed to do so. Indeed, if the
pleading of a different legal theory would have
convinced the trial court to decide a particular issue in
the first action which, with the use of diligence the
plaintiffs could have raised therein but failed to do so,
they are barred by res judicata. Nor do legal theories
operate to constitute a cause of action. New legal
theories do not amount to a new cause of action so as
to defeat the application of the principle of res judicata.
Hao vs Andres: Kenneth Hao is one of the defendants in
a civil case for replevin pending before the RTC. Judge
Renato Fuentes issued an Order of Seizure against 22
motor vehicles allegedly owned by Hao. On the strength
of the said order, Abe Andres, Sheriff of RTC, was able
to seize 9 motor vehicles on different dates.
In his Affidavit-Complaint against Andres before the
Office of the Court Administrator (OCA), Hao alleged
that Andres gave undue advantage to Zenaida Silver in
the implementation of the order and that Andres seized
the 9 motor vehicles in an oppressive manner. Hao also
averred that Andres was accompanied by unidentified
armed personnel on board a military vehicle which was
excessive since there were no resistance from them.
Hao also discovered that the compound where the
seized motor vehicles were placed is actually owned by
Silver.
In view of the approval of Hao’s counter-replevin bond,
Judge Emmanuel Carpio ordered Andres to immediately
cease and desist from further implementing the order of
seizure, and to return the seized motor vehicles
including its accessories to their lawful owners.
 REMEDIAL LAW I (BRONDIAL)
However, 8 of the 9 seized motor vehicles were
reported missing. Andres narrated that PO3 Rodrigo
Despe, one of the policemen guarding the motor
vehicles, reported to him that "Nonoy" entered the
compound and caused the duplication of the vehicles'
keys.
Subsequently, Hao reported that 3 of the carnapped
vehicles were recovered by the police. He then accused
Andres of conspiring and conniving with Atty. Oswaldo
Macadangdang (Silver's counsel) and the policemen in
the carnapping of the motor vehicles. Hao also accused
Andres of concealing the depository receipts from them
and pointed out that the depository receipts show that
Silver and Atty. Macadangdang were the ones who
chose the policemen who will guard the motor vehicles.
After the OCA recommended that the matter be
investigated, we referred the case to Executive Judge
Renato Fuentes for investigation, report and
recommendation. Judge Fuentes found Andres guilty of
serious negligence in the custody of the 9 motor
vehicles. He recommended that Andres be suspended
from office.
Judge Fuentes found numerous irregularities in the
implementation of the writ of replevin/order of seizure,
to wit: (1) at the time of the implementation of the writ,
Andres knew that the vehicles to be seized were not in
the names of any of the parties to the case; (2) one
vehicle was taken without the knowledge of its
owner,Junard Escudero; (3) Andres allowed Atty.
Macadangdang to get a keymaster to duplicate the
vehicles' keys in order to take 1 motor vehicle; and (4)
Andres admitted that prior to the implementation of the
writ of seizure, he consulted Silver and Atty.
Macadangdang regarding the implementation of the
writ and was accompanied by the latter in the course of
the implementation. Judge Fuentes observed that the
motor vehicles were speedily seized without strictly
observing fairness and regularity in its implementation.
Anent the safekeeping of the seized motor vehicles,
Judge Fuentes pointed out several instances where
Andres lacked due diligence to wit: (1) the seized motor
vehicles were placed in a compound surrounded by an
insufficiently locked see-through fence; (2) 3 motor
vehicles were left outside the compound; (3) Andres
turned over the key of the gate to the policemen
120
guarding the motor vehicles; (4) Andres does not even
know the full name of the owner of the compound, who
was merely known to him as "Gloria"; (5) except for PO3
Despe and SPO4 Nelson Salcedo, the identities of the
other policemen tapped to guard the compound were
unknown to Andres; (6) Andres also admitted that he
only stayed at least one hour each day from October 19-
21, 2005 during his visits to the compound; and (7) even
after it was reported to him that a certain "Nonoy"
entered the compound and duplicated the keys of the
motor vehicles, he did not exert his best effort to look
for that "Nonoy" and to confiscate the duplicated keys.
Judge Fuentes also observed that Andres appeared to
be more or less accommodating to Silver and her
counsel but hostile and uncooperative to the
complainant. He pointed out that Andres depended
solely on Silver in the selection of the policemen who
would guard the seized motor vehicles. He added that
even the depository receipts were not turned over to
the defendants/third-party claimants in the replevin
case but were in fact concealed from them. Andres also
gave inconsistent testimonies as to whether he has in
his possession the depository receipts.
OCA disagreed with the observations of Judge Fuentes.
It recommended that Andres be held liable only for
simple neglect of duty.
SC: We adopt the recommendation of the investigating
judge.
Being an officer of the court, Andres must be aware that
there are well-defined steps provided in the Rules of
Court regarding the proper implementation of a writ of
replevin and/or an order of seizure. The Rules is explicit
on the duty of the sheriff in its implementation. To
recapitulate what should be common knowledge to
sheriffs, the pertinent provisions of Rule 60, of the Rules
of Court are quoted hereunder:
SEC. 4. Duty of the sheriff. Upon receiving such order,
the sheriff must serve a copy thereof on the adverse
party, together with a copy of the application, affidavit
and bond, and must forthwith take the property, if it be
in the possession of the adverse party, or his agent, and
retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the
sheriff must demand its delivery, and if it be not
 REMEDIAL LAW I (BRONDIAL)
delivered, he must cause the building or enclosure to be
broken open and take the property into his possession.
After the sheriff has taken possession of the property as
herein provided, he must keep it in a secure place and
shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses
for taking and keeping the same.
SEC. 6. Disposition of property by sheriff. - If within five
(5) days after the taking of the property by the sheriff,
the adverse party does not object to the sufficiency of
the bond, or of the surety or sureties thereon; or if the
adverse party so objects and the court affirms its
approval of the applicant's bond or approves a new
bond, or if the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an approved
bond, the property shall be delivered to the applicant. If
for any reason the property is not delivered to the
applicant, the sheriff must return it to the adverse party.
First, the rules provide that property seized under a writ
of replevin is not to be delivered immediately to the
plaintiff.22 In accordance with the said rules, Andres
should have waited no less than five days in order to
give the complainant an opportunity to object to the
sufficiency of the bond or of the surety or sureties
thereon, or require the return of the seized motor
vehicles by filing a counter-bond. This, he failed to do.
Records show that Andres took possession of two of the
subject motor vehicles on October 17, 2005, four on
October 18, 2005, and another three on October 19,
2005. Simultaneously, as evidenced by the depository
receipts, on October 18, 2005, Silver received from
Andres six of the seized motor vehicles, and three more
motor vehicles on October 19, 2005. Consequently,
there is no question that Silver was already in
possession of the nine seized vehicles immediately after
seizure, or no more than three days after the taking of
the vehicles. Thus, Andres committed a clear violation
of Section 6, Rule 60 of the Rules of Court with regard to
the proper disposal of the property.
It matters not that Silver was in possession of the seized
vehicles merely for safekeeping as stated in the
depository receipts. The rule is clear that the property
seized should not be immediately delivered to the
plaintiff, and the sheriff must retain custody of the
121
seized property for at least five days.23 Hence, the act
of Andres in delivering the seized vehicles immediately
after seizure to Silver for whatever purpose, without
observing the five-day requirement finds no legal
justification.
In Pardo v. Velasco, this Court held that: 'Respondent as
an officer of the Court is charged with certain ministerial
duties which must be performed faithfully to the letter.
Every provision in the Revised Rules of Court has a
specific reason or objective. In this case, the purpose of
the five (5) days is to give a chance to the defendant to
object to the sufficiency of the bond or the surety or
sureties thereon or require the return of the property
by filing a counterbond.'
In Sebastian v. Valino, this Court reiterated that: Under
the Revised Rules of Court, the property seized under a
writ of replevin is not to be delivered immediately to
the plaintiff. The sheriff must retain it in his custody for
five days and he shall return it to the defendant, if the
latter, as in the instant case, requires its return and files
a counterbond.'
Likewise, Andres' claim that he had no knowledge that
the compound is owned by Silver fails to convince us.
Regardless of who actually owns the compound, the fact
remains that Andres delivered the vehicles to Silver
prematurely. It violates the rule requiring him to
safekeep the vehicles in his custody. The alleged lack of
facility to store the seized vehicles is unacceptable
considering that he should have deposited the same in a
bonded warehouse. If this was not feasible, he should
have sought prior authorization from the court issuing
the writ before delivering the vehicles to Silver.
Second, it must be stressed that from the moment an
order of delivery in replevin is executed by taking
possession of the property specified therein, such
property is in custodia legis. As legal custodian, it is
Andres' duty to safekeep the seized motor vehicles.
Hence, when he passed his duty to safeguard the motor
vehicles to Silver, he committed a clear neglect of duty.
Third, we are appalled that even after PO3 Despe
reported the unauthorized duplication of the vehicles'
keys, Andres failed to take extra precautionary
measures to ensure the safety of the vehicles. It is
obvious that the vehicles were put at risk by the
 REMEDIAL LAW I (BRONDIAL)
unauthorized duplication of the keys of the vehicles.
Neither did he immediately report the incident to the
police or to the court. The loss of the motor vehicles
could have been prevented if Andres immediately asked
the court for an order to transfer the vehicles to
another secured place as soon as he discovered the
unauthorized duplication. Under these circumstances,
even an ordinary prudent man would have exercised
extra diligence. His warning to the policemen to closely
watch the vehicles was insufficient. Andres cannot toss
back to Silver or to the policemen the responsibility for
the loss of the motor vehicles since he remains chiefly
responsible for their safekeeping as legal custodian
thereof. Indeed, Andres' failure to take the necessary
precaution and proper monitoring of the vehicles to
ensure its safety constitutes plain negligence.
Fourth, despite the cease and desist order, Andres failed
to return the motor vehicles to their lawful owners.
Instead of returning the motor vehicles immediately as
directed, he opted to write Silver and demand that she
put up an indemnity bond to secure the third-party
claims. Consequently, due to his delay, the eventual loss
of the motor vehicles rendered the order to return the
seized vehicles ineffectual to the prejudice of the
complaining owners.
It must be stressed that as court custodian, it was
Andres' responsibility to ensure that the motor vehicles
were safely kept and that the same were readily
available upon order of the court or demand of the
parties concerned. Specifically, sheriffs, being ranking
officers of the court and agents of the law, must
discharge their duties with great care and diligence. In
serving and implementing court writs, as well as
processes and orders of the court, they cannot afford to
err without affecting adversely the proper dispensation
of justice. Sheriffs play an important role in the
administration of justice and as agents of the law, high
standards of performance are expected of them.29
Hence, his failure to return the motor vehicles at the
time when its return was still feasible constitutes
another instance of neglect of duty.
Good faith on the part of Andres, or lack of it, in
proceeding to properly execute his mandate would be
of no moment, for he is chargeable with the knowledge
that being an officer of the court tasked therefor, it
behooves him to make due compliance. He is expected
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to live up to the exacting standards of his office and his
conduct must at all times be characterized by rectitude
and forthrightness, and so above suspicion and mistrust
as well.35 Thus, an act of gross neglect resulting in loss
of properties in custodia legis ruins the confidence
lodged by the parties to a suit or the citizenry in our
judicial process. Those responsible for such act or
omission cannot escape the disciplinary power of this
Court.
Anent the allegation of grave abuse of authority
(oppression), we likewise agree with the observations of
the investigating judge. Records show that Andres
started enforcing the writ of replevin/order of seizure
on the same day that the order of seizure was issued.
He also admitted that he took the vehicles of persons
who are not parties to the replevin case. He further
admitted that he took one vehicle belonging to Junard
Escudero without the latter's knowledge and even
caused the duplication of its keys in order that it may be
taken by Andres. Certainly, these are indications that
Andres enforced the order of seizure with undue haste
and without giving the complainant prior notice or
reasonable time to deliver the motor vehicles. Hence,
Andres is guilty of grave abuse of authority (oppression).
When a writ is placed in the hands of a sheriff, it is his
duty, in the absence of any instructions to the
contrary, to proceed with reasonable celerity and
promptness to execute it according to its mandate.
However, the prompt implementation of an order of
seizure is called for only in instances where there is no
question regarding the right of the plaintiff to the
property. Where there is such a question, the prudent
recourse for Andres is to desist from executing the
order and convey the information to his judge and to
the plaintiff.
True, sheriffs must comply with their mandated
ministerial duty to implement writs promptly and
expeditiously, but equally true is the principle that
sheriffs by the nature of their functions must at all
times conduct themselves with propriety and decorum
and act above suspicion. There must be no room for
anyone to conjecture that sheriffs and deputy sheriffs
as officers of the court have conspired with any of the
parties to a case to obtain a favorable judgment or
immediate execution. The sheriff is at the front line as
 REMEDIAL LAW I (BRONDIAL)
representative of the judiciary and by his act he may
build or destroy the institution.
RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO
THE REGIONAL TRIAL COURTS
There are two (2) kinds of appeal:
1. notice of appeal
2. record on appeal
Time Frames:
• Notice of Appeal: 15 days after notice to the appellant
of the judgment or final order appealed from
• Record on Appeal: 30 days after notice of the
judgment or final order
Why is it that the rule allows a 30-day period for a
record on appeal? Because this refers to multiple
appeals. Aside from that, the rule requires that you have
to attach pertinent documents or records of the case
relative to the issue on appeal.
In the Rules of Court, there are several multiple appeals.
In Special Civil Actions, you find that in Rule 67
(Expropriation) and Rule 69 (Partition). But a classic
example of multiple appeals is settlement of estate,
especially if there is a will where you will start with
probate of a will. Every part there is a final order. If you
start with the will, once it is probated, the order
probating a will is a final order which is appealable. The
next step is appointment of executor/administrator.
Again, that is a final order which you can appeal. Next
you submit an inventory and accounting after 1 year
which are again final orders. Then you move to partition
and distribution which is again a final order.
Suppose you appeal the appointment of an executor,
the records remain with the trial court. What you will
(send?) to the appellate court are only those matters
concerning the issue of appointing an executor. You will
have to prepare documents, evidence, testimony, etc.
so it will take some time. That’s why the rule even
allows a joint record on appeal.
A record on appeal is already available in the lower
court (MTC) because of RA 7691. Estate proceedings
may now be taken cognizance by a lower court
123
depending on the gross value of the estate (300K or
below/400K or below, MTC; above that, RTC).
When you file a notice of appeal with the MTC, when is
that appeal perfected? In Rule 40, you make a cross
reference to Sec. 9, Rule 41 which provides the
perfection of appeal and the expiration of a period to
appeal.
Section 9. Perfection of appeal; effect thereof. — A
party's appeal by notice of appeal is deemed perfected
as to him upon the filing of the notice of appeal in due
time.
A party's appeal by record on appeal is deemed
perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal filed
in due time.
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time
to appeal of the other parties.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time
and the expiration of the appeal of the other parties.
In either case, prior to the transmittal of the original
record or the record on appeal, the court may issue
orders for the protection and preservation of the rights
of the parties which do not involve any matter litigated
by the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in
accordance with 2 of Rule 39, and allow withdrawal of
the appeal.
This section is important because it applies to all kinds
of courts.
When you file a notice of appeal with the clerk of court,
the appeal is perfected upon filing of the notice of
appeal as far as the appellant is concerned. But the
court does not lose jurisdiction over the case because
the loss of jurisdiction happens only upon expiration of
the period to appeal.
(go back to the example under Jurisdiction, p. 13)
 REMEDIAL LAW I (BRONDIAL)
After the filing of the notice of appeal, if it is the MTC,
said court has 15 days within which to elevate the
records to the RTC. Before the elevation of the records,
the court can still exercise residual jurisdiction.
Upon elevation of the records from the MTC to the RTC,
the RTC, thru its clerk of court, must issue a notice to
the appellant who may either be plaintiff-appellant of
defendant-appellant. Upon that notification, the
appellant will submit a memorandum of appeal within a
period of 15 days, copy furnished to the appellee who
has the same period of time within which to file/submit
an appellee’s memorandum. On the basis of these
memoranda, the court will render judgment, unless one
of them would file a Reply memorandum which is not
required. If a memorandum for the appellant is not
filed, it will amount to a dismissal. If there is no filing of
a appellee’s memorandum, a decision will be rendered
by the court. It cannot be dismissed because the
appellant filed a memorandum.
If the decision of the MTC is affirmed by the RTC, you go
up to the CA by petition for review under Rule 42.
New Provision: Sec. 8, Rule 40
Section 8. Appeal from orders dismissing case without
trial; lack of jurisdiction. — If an appeal is taken from an
order of the lower court dismissing the case without a
trial on the merits, the Regional Trial Court may affirm
or reverse it, as the case may be. In case of affirmance
and the ground of dismissal is lack of jurisdiction over
the subject matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the merits as
if the case was originally filed with it. In case of reversal,
the case shall be remanded for further proceedings.
Lack of jurisdiction is a ground for dismissal but the
dismissal here may either be with or without trial on the
part of the court. If the case is dismissed by the MTC for
lack of jurisdiction, that dismissal is a final order and so
you appeal to the RTC. The RTC, upon taking cognizance
of the appeal, may either affirm or reverse the order of
dismissal. If it affirms the order of dismissal because the
lower court has no jurisdiction, you have to find out
whether the RTC has jurisdiction over the subject
matter of the original case (not the appealed case) as it
was filed with the MTC. If it has jurisdiction, instead of
124
throwing out the complaint, the RTC must take
cognizance of it as if it was originally filed therein.
If it is a reversal, the RTC has to remand it to the MTC or
await for any party to file a new action. It can also
happen that it was affirmed but it taken cognizance of
by the RTC because it has no jurisdiction either.
Example 1: If you file a labor case with the MTC which
was dismissed for lack of jurisdiction and it was
appealed to the RTC, the latter court has no jurisdiction
to try the case either. The RTC has to affirm the order of
dismissal but it has no jurisdiction.
Example 2: Suppose a case was filed with the MTC for
the amount of 500K. The MTC has no jurisdiction hence
it will dismiss the case. You then appeal it to the RTC
which now has jurisdiction over the amount. As such,
instead of throwing out the complaint, the RTC takes
cognizance of it as if it was originally filed with it.
These inferences seem to be incorrect because an
appellate court can only take cognizance of an appeal
when the lower court exercised original jurisdiction.
Otherwise, what the cognizing court exercised would in
effect be original jurisdiction as well. Sec. 8, Rule 40,
however, is the exception. That’s why this is not in the
1960 Rules of Court.
General Rule: Appellate jurisdiction can only be
exercised if the lower court has original jurisdiction.
Exception: Sec. 8, Rule 40
If it has been tried already and it was dismissed, still you
appeal it but the problem there is that the evidence is
already admitted by the lower court. They remain. They
don’t need to be retaken if there is already trial.
RULE 41: APPEAL FROM THE REGIONAL TRIAL COURTS
The RTC here exercises original jurisdiction.
Same rules as Rule 40 with respect to the following:
• two (2) kinds of appeal
• notice of appeal (single)
• record on appeal (multiple)
 REMEDIAL LAW I (BRONDIAL)
• perfection of appeal (Sec. 9, Rule 41)
• loss of jurisdiction
• expiration of the period to appeal
Rule 41 only differs from Rule 40 in terms of the time
frame. The elevation of the record from the RTC to the
CA is thirty (30) days.
When you read Rule 41, you are left hanging because
the process is not yet done. The continuation of Rule 41
is Rule 44 (Ordinary Appealed Cases).
RULE 42: PETITION FOR REVIEW FROM THE REGIONAL
TRIAL COURTS TO THE COURT OF APPEALS
This is a kind of appeal from the RTC to the Court of
Appeals when the former court exercises appellate
jurisdiction.
The best example of this rule is an unlawful detainer
case because such case is originally cognizable by the
MTC. Hence you appeal to the RTC then you go up on a
petition for review, in which case you avail of Rule 42.
**This is just a reading matter.**
RULE 43: APPEALS FROM QUASI-JUDICIAL AGENCIES
TO THE COURT OF APPEALS
The CTA is no longer covered by this rule pursuant to RA
9282 which elevated said court to the level of the Court
of Appeals.
From quasi-judicial bodies, you go up to the CA. This is
not by notice of appeal or by record on appeal but
rather, by petition for review.
Pleading-wise, this is the same as Rule 42 as to content
of the petition for review.
Section 12. Effect of appeal. — The appeal shall not stay
the award, judgment, final order or resolution sought to
be reviewed unless the Court of Appeals shall direct
otherwise upon such terms as it may deem just.
This means that the appeal does not stop the
proceeding. In other words, you can have the judgment
125
executed. That is why what you have to do is to pray for
injunctive relief under Rule 58 (Preliminary Injunction),
absence of which, execution will follow.
As to Section 1 of this rule, there is no need to
memorize because the enumeration is not exclusive.
Just remember the five (5) tribunals whose decisions
and final orders must go up only to the Supreme Court.
All the rest is with the CA.
RULE 44: ORDINARY APPEALED CASES
Note that upon elevation of the records from the RTC to
the CA, the CA will notify also the appellant that the
records are already with them. Upon this notice, the
appellant is supposed to submit an appellant’s brief.
Rule 44 tells you as to what should constitute an
appellant’s brief which is mandatory.
Section 7. Appellant's brief. — It shall be the duty of the
appellant to file with the court, within forty-five (45)
days from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of
two (2) copies thereof upon the appellee.
Section 13. Contents of appellant's brief. — The
appellant's brief shall contain, in the order herein
indicated, the following:
1. A subject index of the matter in the brief with a
digest of the arguments and page references, and a
table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where
they are cited;
1. An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely
stated without repetition and numbered
consecutively;
1. Under the heading "Statement of the Case," a clear
and concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings
and orders of the court, the nature of the judgment
and any other matters necessary to an
 REMEDIAL LAW I (BRONDIAL)
understanding of the nature of the controversy with
page references to the record;
2. Under the heading "Statement of Facts," a clear and
concise statement in a narrative form of the facts
admitted by both parties and of those in
controversy, together with the substance of the
proof relating thereto in sufficient detail to make it
clearly intelligible, with page references to the
record;
2. A clear and concise statement of the issues of fact or
law to be submitted, to the court for its judgment;
1) Under the heading "Argument," the appellant's
arguments on each assignment of error with page
references to the record. The authorities relied upon
shall be cited by the page of the report at which the
case begins and the page of the report on which the
citation is found;
1) Under the heading "Relief," a specification of the
order or judgment which the appellant seeks; and
1. In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a copy
of the judgment or final order appealed from.
On the basis of Sec. 13, this order must be strictly
followed:
subject index
statement of the case
statement of the facts
issues
argumentations
prayer
Non-compliance with this order is a ground for dismissal
pursuant to Sec.1(f), Rule 50.
Section 1. Grounds for dismissal of appeal. — An
appeal may be dismissed by the Court of Appeals, on its
own motion or on that of the appellee, on the following
grounds:
xxx xxx xxx
3. Absence of specific assignment of errors in the
appellant's brief, or of page references to the record
126
as required in section 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
xxx xxx xxx
When the CA notifies you to file an appellant’s brief, you
have to go to the CA and look over the records of the
case. Don’t rely on your own records because the basis
of your appellant’s brief must be the official records of
the case which are now with the CA. You will note from
Rule 41 that before the RTC clerk of court transmits the
records to the CA, they must be arranged
chronologically and paged accordingly. That is the
provision of the rule. If you have the copy of the records
of the case, it bears no paging.
Example: You have a copy of the TSN which consists of
105 pages. If you look over the records of the case as
transmitted to the clerk of court of the CA, you will see
that your pages 1-50 are not necessarily numbered the
in same way as the official records. If you are preparing
your appellant’s brief, you make notations/foot notes. If
your foot notes will follow the paging in your own copy,
said notations will not match the records of the case
such that when the judge reads your brief and finds that
your references are not correct, he will simply dismiss
your case.
Trivia: The ordinary market price now for an appellant’s
brief is P50,000.00.
Under Rule 44, upon receipt of your notice, you have
forty-five (45) days to prepare an appellant’s brief (Sec.
7, Rule 44), copy furnished the appellee who has the
same period within which to file his appellee’s brief. The
appellant, if he wants to, within twenty (20) days from
receipt of the appellee’s brief, may submit a reply brief.
Section 8. Appellee's brief. — Within forty-five (45) days
from receipt of the appellant's brief, the appellee shall
file with the court seven (7) copies of his legibly
typewritten, mimeographed or printed brief, with proof
of service of two (2) copies thereof upon the appellant.
Section 9. Appellant's reply brief. — Within twenty (20)
days from receipt of the appellee's brief, the appellant
may file a reply brief answering points in the appellee's
brief not covered in his main brief.
 REMEDIAL LAW I (BRONDIAL)
Note: This is not given in the bar but may come in handy
in practice.
RULE 45: APPEAL BY CERTIORARI TO THE SUPREME
COURT
This is an appeal from the following tribunals:
• Court of Appeals
• Sandiganbayan
• Court of Tax Appeals (en banc)
• Commission on Appointments
• Commission on Elections
• Regional Trial Courts
In the first five (5) tribunals, there is no other way but to
elevate to the Supreme Court. Therefore, what is crucial
in Rule 45 is the appeal from the RTC. As a general rule,
no case must go directly to the Supreme Court. It must
always follow the principle of hierarchy of courts.
In Rule 45, it is provided that a decision or final order of
the Regional Trial Court bypasses the CA and goes up
directly to the Supreme Court. But the limitation is pure
question of law so that if you avail of the wrong appeal,
there is no remand or transmittal under the present
rule. It should be outright dismissal.
If you go up to the Supreme Court and you raise
questions of fact, it would amount to a dismissal. This
has the same effect even if you raise questions of fact
together with questions of law. The issue is what is a
question of law and what is a question of fact.
As a general rule, a question of fact requires the
presentation of evidence whereas a question of law is
simply the determination of what the law in a particular
situation is applicable.
For purposes of the bar, there are three (3) exceptions
and they are the remedies against a decision of the
following:
2. Writ of Amparo (2007)
3. Writ of Habeas Data (2008)
4. Writ of Kalikasan (2012)
These prerogative writs are also appealable to the
Supreme Court under Rule 45 but on both questions of
fact and law.
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RULE 47: ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
Section 1. Coverage. — This Rule shall govern the
annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies
are no longer available through no fault of the
petitioner.
Annulment of judgments is also an equitable remedy. In
fact, this is resorted to only when you were not able to
avail all the other remedies against a final judgment
namely, new trial, reconsideration, appeal, and even
petition for relief. It appears from Mesina v. Meer, even
before you can avail of annulment of judgment, you first
have to apply for petition for relief from judgment.
Note: Do not confuse an equitable remedy from
prerogative remedies which talk of prerogative writs:
Writ of Amparo, Writ of Habeas Data, and Writ of
Kalikasan.
Rule 47 is the last remedy against an executory
judgment.
What are the grounds?
1. extrinsic fraud
2. lack of jurisdiction
Section 2. Grounds for annulment. — The annulment
may be based only on the grounds of extrinsic fraud and
lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for
new trial or petition for relief.
What is important is to consider the requirement that
you can only avail of this when you were not able to
avail of the precedent remedies and you are not at fault
for not availing of them. Otherwise, you cannot avail of
annulment of judgments.
What are the limitations?
 REMEDIAL LAW I (BRONDIAL)

• extrinsic fraud: action must be filed within four (4)
years from its discovery
• lack of jurisdiction: before it is barred by laches or
estoppel
Section 3. Period for filing action. — If based on
extrinsic fraud, the action must be filed within four (4)
years from its discovery; and if based on lack of
jurisdiction, before it is barred by laches or estoppel.
decisions, resolutions, and judgments of quasi-judicial
bodies are not subject to annulment. Therefore, you
cannot file a petition or an action for annulment of
judgments of quasi-judicial bodies. There is no such
remedy. Your only remedy is limited to Rule 43 which is
a petition for review before the Court of Appeals.
**Rules 48-51 are just reading matters.**

Note that the effect of these two (2) remedies against

an executory judgment are different.

If you are granted petition for relief from judgment

(Rule 38), what happens? The judgment is set aside or
vacated then you have trial de novo. Take note that this
trial is not the presentation of the case all over again.
Rather, it is only for those which are relevant to the
issues that have been set aside.

In the case of annulment of judgment, what is the

effect if it is granted? It renders the questioned
judgment null and void.

Section 7. Effect of judgment. — A judgment of

annulment shall set aside the questioned judgment or
final order or resolution and render the same null and
void, without prejudice to the original action being
refiled in the proper court. However, where the
judgment or final order or resolution is set aside on the
ground of extrinsic fraud, the court may on motion
order the trial court to try the case as if a timely motion
for new trial had been granted therein.

Which court has jurisdiction over such action? An

action to annul a judgment or final order of a Municipal
Trial Court shall be filed in the Regional Trial Court
having jurisdiction over the former. If it is an action to
annul the judgment of the RTC, it is filed with the CA.
This exclusive and original jurisdiction is also in RA 7691.

Annulment of judgments of RTCs are exclusively and

originally cognizable by the Court of Appeals. But you
can also seek for the annulment of decisions, final
orders, and resolution of the lower courts but the
jurisdiction there is with the RTC.

How about if you seek to annul the judgment of quasi-

judicial bodies? Which court has jurisdiction? The

128